Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1386 (GAU)

Milan Hoque v. State of Assam

2018-09-17

UJJAL BHUYAN

body2018
JUDGMENT : 1. This order will dispose of both WP(C) Nos. 2719 and 3112 of 2018. 2. Heard Mr. S. Kataki, learned counsel for the petitioner in WP(C) No. 2719 of 2018 and Mr. A. Mannaf, learned counsel for the petitioner in WP(C) No. 3112 of 2018. Also heard Mr. Y. Doloi, learned standing counsel, Transport Department. Mr. A.R. Sikdar, learned counsel, who has filed an interlocutory application being LA (Civil) No. 3403 of 2018 for impleadment as a respondent in WP(C) No. 3112 of 2018 has also been heard. 3. WP(C) No. 2719 of 2018 relates to settlement of Doukuchi-Bhakradia-Rangeswari-Pijupara Ferry Service in the district of Kamrup (Rural). In connection with settlement of ferry ghats, Executive Engineer, Inland Water Transport (‘IWT’) Division, Ulubari, Guwahati, issued NIT dated 28.3.2017. Petitioner was one of the tenderers, who had responded to the said NIT. Before settlement could be made, petitioner and another had approached this court by filing a writ petition being WP(C) No. 3250 of 2017, contending that while making settlement, the settling authority is required to comply with the provisions of the Control and Management of Ferry Rules, 1968 (‘1968 Rules’), more particularly, rule 16(1) and rule 19 thereof. It was contended that this court in Abdul Mazid v. State of Assam, (1987) 2 GLR 476, held the aforesaid 2 provisions to be mandatory in nature. The writ petition was disposed of by this court vide order dated 13.2.2018 by directing the departmental Secretary to consider all relevant factors before taking a final decision vis-a-vis award of settlement including the decision of the court in the case of Abdul Mazid (supra). 3.1 Thereafter, Commissioner and Secretary to the Government of Assam, Transport Department had passed office order dated 31.3.2018, holding that when the 1968 Rules were notified there were only 6 major ferry services in the State, but presently, there are 104 notified ferry services operating under the Inland Water Transport (IWT) Department. 1968 Rules have become archaic; many of its provisions have become irrelevant and out of context. While 1968 Rules have been taken as guiding principles for settlement, Transport Department has initiated steps for framing of new legislation. 1968 Rules have become archaic; many of its provisions have become irrelevant and out of context. While 1968 Rules have been taken as guiding principles for settlement, Transport Department has initiated steps for framing of new legislation. It is stated that recommendations of the tender committee as received from the Director of Inland Water Transport (IWT) on the basis of the NIT issued on 28.3.2017 have been accepted in respect of all the ferries mentioned in the said NIT. 4. This office order dated 31.3.2018 is under challenge in WP(C) No. 2719 of 2018. 5. This court by order dated 4.5.2018, had issued notice and suspended the aforesaid order dated 31.3.2018. 6. WP(C) No. 3112 of 2018 relates to settlement of Majortoop (Alikash) Bhangnamari, Nowbhaja, Dekardiya, Kalartoop, Saralpara Ferry Service in the district of Kamrup (Rural). In respect of the aforesaid ferry service there was a re-tender dated 1.11.2017, pursuant to which, petitioner had submitted tender. Grievance made in this writ petition is that notice of settlement dated 11.4.2018 was issued for temporary settlement of the ferry service. In the course of the hearing, court was informed that final settlement of the ferry service was kept in abeyance because of order dated 4.5.2018, passed in WP(C) No. 2719 of 2018. 7. One Sri Prabin Kumar Mondal has filed an application seeking impleadment as a respondent in WP(C) No. 3112 of 2018. In his application, he has stated that he had also submitted tender for the said ferry service. Tenders were opened on 18.11.2017, whereafter comparative statement was prepared. On preparation of the comparative statement, it was found that there were altogether 5 valid tenderers, out of which, the applicant, i.e., Sri Prabin Kumar Mondal offered the highest bid. He has stated that the tender committee has recommended settlement of the ferry service with him, whereafter, Director of Inland Water Transport (IWT) had forwarded the recommendation to the departmental Commissioner and Secretary. Because of pendency of the writ petition, no decision has been taken by the Commissioner and Secretary to the Government of Assam, Transport Department. 8. Insofar WP(C) No. 3112 of 2018 is concerned, final order of settlement is yet to be issued. The recommendation of the Director of Inland Water Transport (IWT) is pending consideration of the Commissioner and Secretary to the Government of Assam, Transport Department. 8. Insofar WP(C) No. 3112 of 2018 is concerned, final order of settlement is yet to be issued. The recommendation of the Director of Inland Water Transport (IWT) is pending consideration of the Commissioner and Secretary to the Government of Assam, Transport Department. Insofar, WP(C) No. 2719 of 2018 is concerned, stand taken by the departmental Commissioner and Secretary is that the 1968 Rules have become archaic and cannot be implemented. Thereafter, it has been contended that recommendations of the tender committee as forwarded by the Director, Inland Water Transport (IWT) has been accepted. 9. Rule 16 of the 1968 Rules lays down the procedure for conduct of auction sale of ferry service. It also provides the list of certificates and documents, which are required to be submitted by the bidder. On the other hand, rule 19 says that sale by auction/tender shall generally be to the highest bidder/tenderer. However, settling authority may refuse to accept the bid/tender of bidder/tenderer, even if he is the highest bidder if the requirements mentioned in rule 19 are not satisfied. The settling authority while accepting the bid/tender shall consider the following factors amongst others: (i) Whether the bid/tender amount is sufficient to earn approximately the revenue which could be normally expected from the ferry; (ii) Whether the bidder/tenderer is indigenous of the State or permanent resident of the State or outsider; (iii) Whether the tenderer/bidder suffers from moral turpitude or has been convicted by court/blacklisted or a defaulter of land revenue; (iv) Whether the tenderer/bidder possesses periodic patta land of value not less than the bid/tender money in his own name within the District, Sub-Division; (v) Whether the tenderer/bidder has sufficient experience to run the ferry efficiently. 10. In Abdul Mazid, (supra) a Division Bench of this court held the above two provisions to be mandatory. View taken by the departmental Commissioner and Secretary that the 1968 Rules have become archaic and are taken only as guiding principles cannot be accepted. As long as the 1968 Rules are in force, the provisions thereof are required to be followed. Of course the rule making authority may enact or may frame new rules, but till new rules are framed or enacted the existing rules will continue to hold the field. Non-adherance to the requirement of the 1968 Rules by the departmental authorities cannot be permitted. Of course the rule making authority may enact or may frame new rules, but till new rules are framed or enacted the existing rules will continue to hold the field. Non-adherance to the requirement of the 1968 Rules by the departmental authorities cannot be permitted. In that view of the matter, impugned office order dated 31.3.2018 cannot be sustained and is accordingly set aside. 11. Before making settlement, the settling authority is bound to consider all relevant factors and the laws in place. Upon satisfaction that there has been compliance to the relevant requirements, settlement should be offered. 12. In addition to the above, having regard to the recent unfortunate incident of capsizing of a ferry on the Guwahati-North Guwahati Ferry Service, leading to tragic loss of life, court is of the view that it is the duty of Inland Water Transport (IWT) Department to ensure that each and every ferry which plies on the river system of the State, big or small, maintains the required safety norms. Safety of passengers travelling on ferries is of paramount consideration and there cannot be any compromise on that. Each ferry should have exact number of lifesaving jackets against each number of passengers, besides adequate stock of fuel. Each ferry must have a fitness certificate certifying that it is fit to ply on the river. Such certificate should be issued by the jurisdictional Inland Water Transport (IWT) official. Without such certificate, no ferry should be allowed to ply. The concerned official of the Inland Water Transport (IWT) Department who is In-Charge of the ferry-ghat shall carry out a safety audit of the ferries plying on the ghat and ensure that all safety norms are complied with. In case of any eventuality taking place, for lapse of the above, the responsibility will be on the concerned official of the Inland Water Transport (IWT) Department. 13. Accordingly, the matter is remanded back to the settling authority for a decision on settlement by strictly complying with the provisions of the 1968 Rules. If any decision has been taken in the meanwhile, Commissioner and Secretary of the Transport Department shall take a fresh decision in tune with this order de hors the decision(s) already taken. 14. At this stage, Mr. Doloi, learned standing counsel submits that as on date, no ferry service is operating in the State of Assam. If any decision has been taken in the meanwhile, Commissioner and Secretary of the Transport Department shall take a fresh decision in tune with this order de hors the decision(s) already taken. 14. At this stage, Mr. Doloi, learned standing counsel submits that as on date, no ferry service is operating in the State of Assam. Be that as it may, as and when ferry service is made operational, decision(s) as to settlement shall be taken. 15. Both the writ petitions are accordingly disposed of.