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2014 DIGILAW 167 (GAU)

MD. SAHIDUR RAHMAN v. STATE OF ASSAM

2014-02-11

HRISHIKESH ROY

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JUDGEMENT AND ORDER (ORAL) Heard Mr. B Chakraborty, learned counsel appearing for the petitioner. The respondent No.1 is represented by Mr. U Rajbongshi, the standing counsel for the Transport Department. Ms. B Bhuyan, the standing counsel, IWT appears for the respondent Nos.2 & 3. 2. The petitioner was the lessee of the Dibru-Kachari-Oriumghat Ferry Service from 14.12.2011 to 31.3.2012 and he also operated the ferry on temporary basis after expiry of his lease period from 1.4.2012 to 4.9.2012. The settlement was granted on 8.12.2011 (Annexure-1) by the Government in pursuant to a regular process under Rule 19(b) of the Control and Management of Ferry Rules, 1968 (hereinafter referred to as ‘the Ferry Rules’). The temporary settlement was granted at the old rate on periodic extension at 15 days interval by the Executive Engineer, IWT. For operating the ferry service, the petitioner utilised two vessels namely, S.B. Numali and S.B.Lakhimi No.2and 4 operating staff for each boat was to be engaged for running the two vessels. 3. The Government settlement order shows that the ferry was settled at the highest bid of Rs.4,75,000/-and the lessee is required to take care of the staff salary for the 8 employees, quantified at Rs.13,25,000/-.As required by the terms of the lease, the lessee deposited Rs.3,95,685/-for the 2 sets of Driver, Laskar, Boatman and Helmsman each for the two vessels. The departmental authorities in turn was to provide the 8 operational staff to the lessee. In other words, the staff was to be provided by the IWT and their salary is to be paid from the amount pre-deposited by the lessee. 4. The record shows that as Helmsmen were not available in the IWT Division, although salary on their account was pre-deposited by the lessee, the Helmsmen were not be provided departmentally. Therefore for operating the 2 vessels, the lessee had to engage two independent Helmsmen by incurring additional expenditure towards their salary. Thus Rs.94,845/-deposited towards salary of the two Helmsmenremained undisbursed with the IWT authorities. 5. For the later period when the petitioner managed the ferry service on temporary basis from 1.4.2012 to 4.9.2012, similar arrangement was made and during this period, the lessee deposited Rs.1,35,741/-for disbursement of salary for the two Helmsmen to be provided departmentally. Thus Rs.94,845/-deposited towards salary of the two Helmsmenremained undisbursed with the IWT authorities. 5. For the later period when the petitioner managed the ferry service on temporary basis from 1.4.2012 to 4.9.2012, similar arrangement was made and during this period, the lessee deposited Rs.1,35,741/-for disbursement of salary for the two Helmsmen to be provided departmentally. But during the temporary settlement also the Helmsmen had to be engaged by the lessee at his own cost and consequently amount deposited for paying salary for the two departmental Helmsmen (not provided), remained undisbursed with the IWT authorities. 6. Representing the petitioner, Mr. B Chakraborty, learned counsel refers to the statement (page 20) prepared by the Divisional Authorities of the IWT including the Accounts Officer to project that for the lease period of 109 days from 14.12.2011 to 31.3.2012, Rs.94,845/-on account of salary of the two Helmsmen was previously realised from the lessee and this amount should be refunded as the Helmsmen could not be provided departmentally. Similar claim for refund for Rs.1,35,741/-is made for the subsequent period starting from 1.4.2012 to 4.9.2012. 7. Mr. U Rajbongshi, the standing counsel for the Transport Department submits that the salary for the boat staff was collected by the IWT and if any amount is to be refunded to the lessee, it is the responsibility of the IWT authorities only. 8. Representing the respondent Nos.2 & 3, the standing counsel, IWT Ms. B Bhuyan however refers to Rule 34of the Ferry Rules to project that the lessee can’t claim refund of any kistamount due to flood or any other reason. The counsel submits that the staff salary is part of the kistmoney deposited by the lessee and the same is not refundable under Rule 34of the Ferry Rules. Since this Rule is to be considered the same is extracted for ready reference:- “34. The lessee shall have no claim for compensation or remission or refund of any portion of kists money on account of closure of traffic for a continuous period not exceeding 15 days due to any flood or any other reason”. 9. The pre-deposit of the staff salary entails a corresponding responsibility on the IWT authorities to provide the operating staff for the vessels. But in this case, the department couldn’t provide the Helmsmen for the two boats operated by the lessee. 9. The pre-deposit of the staff salary entails a corresponding responsibility on the IWT authorities to provide the operating staff for the vessels. But in this case, the department couldn’t provide the Helmsmen for the two boats operated by the lessee. Consequently two operating staffs had to be hired from the open market and their salary had to be incurred additionally by the lessee. 10. As the settlement holder, the lessee was obliged to operate the ferry service and he could not have refused to run the ferry by citing that the Department failed to provide the operating staff. This would have not only resulted in loss to the lessee but would have caused serious inconvenience for the ferry users. 11. While Rule 34 of the Ferry Rules mayn’t permit refund of the kist money in normal circumstances, but the Rule can’t be interpreted to cause injustice. In the context of the issue, any reason in Rule 34 can’t mean extraneous and non-bonafide reason. Therefore when the department is at fault and is unable to provide the Helmsmen on whose account salary was pre-deposited, the lessee will in my view be entitled to seek refund of the undisbursed amount for the two Helmsmen. Retention of this amount by the IWT will amount to unjust enrichment and the State authorities can’t be allowed to run their affirs in such unfair manner. 12. Considering the above, the Director, IWT is ordered to consider the petitioner’s claim for refund of the salary amount for the two Helmsmen since the IWT failed to provide them for the vessels operated by the lessee. To facilitate the consideration, the petitioner will furnish this order and a written representation addressed to the Director, IWT, Assam. A decision should then be taken by the Director with due regard to the above observation expeditiously and preferably within a period of 6 weeks, from receipt of intimation from the petitioner’s side. 13. The case stands disposed of with the above direction without any order on cost.