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2008 DIGILAW 815 (GAU)

Ali Akbar v. State of Assam

2008-11-25

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. In view of the fact that the issues involved, in these three writ petitions, are inextricably connected with each other and the decision, in any of these writ petitions, would have a bearing on the outcome of the other writ petitions, all these writ petitions, as sought for, and agreed to, by the Learned Counsel for the parties, have been taken up together for the purpose of final disposal at the stage, of admission. I have accordingly heard the Learned Counsel for the parties concerned. 2. All these three writ petitions are in the nature of offshoot of a controversy, which had arisen as a result of operation of two different ferries, one by the Inland Water Transport Department ('the IWTD') and the other by Mandia Anchalik Panchayat. 3. The petitioner, in WP(C) No. 2063/2008, namely, Safiqul Hoque, was the person in whose favour the settlement of Sonapur Kadang Beki Par Ghat had been granted by Executive Officer/Secretary of the Mandia Anchalik Panchayat, for a period of one year, which was to end on 30.6.2008. After this petitioner had been granted settlement, aforesaid, by the said Panchayat, the IWTD granted settlement of the said ferry ghat in favour of another person. In view of the fact that the petitioner had become unable to operate the said ferry ghat freely and in terms of the settlement granted by the said Panchayat, the petitioner challenged, by way of a writ petition, the settlement, which the IWTD had made in favour of the respondent in WP(C) No. 4400/2007. This writ petition was taken up along with two other writ petitions, namely, WP(C) Nos. 4197/07 and 5750/2007 by this Court and by order, dated 10.1.2008, the court disposed of the writ petition with direction to the Chief Secretary and/or Additional Chief Secretary, Government of Assam, to resolve the issue. The relevant observations and directions read as under: Considering the above controversy, it will be appropriate for the Government of Assam to resolve the issue once for all. The Chief Secretary and/or Additional Chief Secretary, Government of Assam shall take on record the necessary materials and shall pass appropriate order considering the relevant factors and also the discussions made above. 4. The Chief Secretary and/or Additional Chief Secretary, Government of Assam shall take on record the necessary materials and shall pass appropriate order considering the relevant factors and also the discussions made above. 4. By order, dated 6.5.2008, the Commissioner of Lower Assam Division, Government of Assam, concluded that the said ferry ghat fall within the jurisdiction of Mandia Anchalik Panchayat and it is the said Panchayat, which has the jurisdiction to make settlement of the said ferry ghat. Having concluded, thus, the Commissioner further pointed out that the petitioner in WP(C) No. 4400/2007, namely, Md. Safiqul Hoque [i.e., the petitioner in WP(C) No. 2063/2008], had been settled with the ferry for the year 2007-08 at a value of Rs. 61,751, but the petitioner had been deprived of his right to operate the ferry, because of the controversy, which had arisen as a result of operation of another ferry by the IWTD and, hence, the petitioner shall be compensated by granting extension of the settlement, which had been made, in his favour, by the said Panchayat. 5. Notwithstanding the fact that by order, dated 6.5.2008, aforementioned, the said Panchayat had been directed to extend the period of settlement of the petitioner in WP(C) No. 4400/2007, namely, Safiqul Hoque [i.e., the petitioner in WP(C) No. 2063/2008], the said Panchayat issued a tender notice, on 3.5.2008, inviting tenders for granting new settlement of the said ferry ghat. The said Safiqul Hoque, [i.e., the petitioner in WP(C) No. 2630/2008], then, came to this Court with a writ petition seeking directions to be given to the said Panchayat to extend/in the light of the directions given in the order, dated 6.5.2008, aforementioned, which was passed by the Commissioner, Lower Assam Division, Guwahati, the period of settlement for the purpose of compensating the loss, which he had incurred. 6. The petitioner, Ali Akbar, whose writ petition has given rise to WP(C) No. 2847/2008, is one of the tenderers, who had participated in the said tender process, and he has put to challenge, in WP(C) No. 2847/2008, the order, dated 6.5.2008, aforesaid passed by the Commissioner, whereby a direction had been given to the said Panchayat to extend the period of settlement. By filing yet another writ petition, which has given rise to WP(C) No. 3448/2008, Ali Akbar [i.e., the petitioner in WP(C) No. 2847/2008], has also sought for setting aside and quashing the order, dated 30.6.2008, passed by the Executive Officer, Mandia Anchalik Panchayat, settling, by way of compensation, the said ghat in favour of Safiqul Hoque and to settle the said ghat in terms of the tender process, which has been initiated by tender notice, dated 3.5.2008, aforementioned. Apart from the question as to whether the Commissioner, Lower Assam Division, had the jurisdiction to direct the said Panchayat to extend the period of settlement of Safiqul Haque in order to compensate the loss, which Safiqul Hoque had suffered, what needs to be pointed out is that while passing the order, dated 10.1.2008, disposing the said three writ petitions, namely, WP(C) No. 4197/2007, 4400/07 and 5750/2007, this Court had given no direction to the Commissioner to decide the question of compensation, what had been directed was to resolve the dispute as to whether the said ferry ghat could be settled by the said Panchayat or by IWTD. When the Commissioner had come to the conclusion that the said ferry ghat could have been legally settled only by the said Panchayat, no further direction, as regards the extension of the period of settlement of Safiqul Hoque, [i.e., the petitioner in WP(C) No. 2063/2008, who is also the petitioner in WP(C) No. 2063/2008], could have been passed. 7. Coupled with the above, the settlement, in the present case, has been made by an Anchalik Panchayat in exercise of its jurisdiction under Section 105 of the Assam Panchayat Act, 1994, and the Rules framed thereunder. Neither the Assam Panchayat Act, 1994, nor the Rules framed thereunder make provisions for extension of the period of settlement for the purpose of enabling a lessee or a settlement holder of a ferry ghat to recover the loss, which he may have incurred after he had received the settlement. Neither the Assam Panchayat Act, 1994, nor the Rules framed thereunder make provisions for extension of the period of settlement for the purpose of enabling a lessee or a settlement holder of a ferry ghat to recover the loss, which he may have incurred after he had received the settlement. In fact, in Kosheswar Bharali v. State of Assam (2000) 3 GLT 528, it was urged before this Court that since the Assam Panchayat Act, 1994, is silent as regards extension of settlement of a ferry, the court should take an equitable view and hold that the authority concerned have the power to grant extension in appropriate cases, where the lessee suffers loss during the period of settlement, Rejecting the submissions, so made, the court observed and held as follows: 5. The reason for rejecting the prayer for extension of the petitioner, inter alia, therefore, is that there is no provision in the Assam Panchayat Act, 1994 for extension of settlement of hat/ghat/ferries. Section 105(1) of the Assam Panchayat Act, 1994, provides that all hats within the territorial jurisdiction of Anchalik Panchayat shall be settled in the manner prescribed for a period coinciding with and not exceeding one Panchayat financial year by inviting tenders at the office of the Anchalik Panchayat. Similarly, Section106(1) of the Assam Panchayat Act, 1994 stated that all public ferries, other than Government ferries within the territorial jurisdiction of the Anchalik Panchayat shall be settled in the manner prescribed for a period coinciding with and not exceeding one Panchayat financial year by inviting tenders at the office of the Anchalik Panchayat by its President. On a reading of different previsions of Sections 105 and 106 of the said Act, it appears that there is no provision for extension of settlement either of hats or of public ferries. 6. Mr. Hazarika, however, submitted that since the said two sections of the Assam Panchayat Act, 1994, are silent with regard to extension of settlement of hat or ferry, the court should take an equitable view and hold that the authorities have the power to grant extension in appropriate cases where the lessee suffers loss during the period of settlement. I am unable to accept the said submission of Mr. I am unable to accept the said submission of Mr. Hazarika as both Sections 105 and 106of the Assam Panchayat Act, 1994, state that the settlement of hat or public ferry is not to exceed one Panchayat financial year and further state that such settlement has to be made by inviting tenders. Thus, the express provisions of Sections 105 and 106 of the Assam Panchayat Act, 1994 prohibited any extension or settlement beyond the period of one Panchayat financial year and further mandate that any settlement has to be made by inviting tenders. Therefore, I hold that no extension can be granted in respect of a public ferry settled under Section 106 of the Assam Panchayat Act, 1994, by inviting tenders and that after a period of settlement of one year such public ferry can only be settled afresh by inviting tenders and not otherwise. (emphasis added) 8. From what have been observed and concluded above, what becomes clear is that when there is no provision made in the Assam Panchayat Act, 1994, for granting extension of the period of settlement and when the said Act makes it clear that the settlement shall be for one Panchayat financial year, it is not possible for a Panchayat to extend the period of settlement, even though the settlement holder or lessee might have sustained loss. Had the Legislature intended making such provisions, it could have done so as have been done in the cases of fisheries. I, therefore, see no reason to take a view different from what has been taken in Kosheswar Bharali (supra) and I hold that extension of the period of settlement of a ferry ghat cannot be granted by a Panchayat under the provisions of the Assam Panchayat Act, 1994. 9. Because of the conclusions reached above, it becomes clear that the directions, given by the Commissioner, in the impugned order, dated 6.5.2008, to the said Panchayat to compensate Safiqul Hoque [i.e., the petitioner in WP(C) No. 2063/2008], by way of extension of the settlement, which had been granted to him, is completely without jurisdiction and must be set aside. If the order, dated 6.5.2008, is set aside, the consequence would be that the writ petition, filed by the Sofiqul Hoque, seeking direction to the State respondents to extend his period of settlement, must also fail. 10. If the order, dated 6.5.2008, is set aside, the consequence would be that the writ petition, filed by the Sofiqul Hoque, seeking direction to the State respondents to extend his period of settlement, must also fail. 10. In the result, and for the reasons discussed above, the impugned orders, dated. 6.5.2008 and 30.6.2008 are hereby set aside and quashed. The prayer for extension made by the petitioner, Safiqul Hoque, in WP(C) No. 2063/2008, is not allowed; hence, this writ petition shall stand dismissed. 11. It is further directed that the said Panchayat shall proceed with the finalization of the lease, if they so decide, in terms of the notice inviting tender, dated 3.5.2008. It is further made clear that Safiqul Hoque [i.e., the petitioner in WP(C) No. 2063/2008] shall remain at liberty to recover his loss by taking resort to appropriate provisions of law. 12. With the above observations and directions, all these three writ petitions shall stand disposed of. Petition dismissed.