High Court Division
(Special Original Jurisdiction)
Nozrul Islam Chowdhury J
Mohammad Ullah J
Bangladesh Inland Water Transport Authority (BIWTA)………….
………….. . Petitioner
vs
Bangladesh & others
……………Respondents
Judgment
April 15th, 2013
Constitution of Bangladesh, 1972
Article 102(2)
The dispute over the control, management and leasing out of Ghat, can only be resolved finally and completely by way of a policy decision at the highest level of the government and the said dispute is not at all justifiable in exercise of the writ jurisdiction. …..(4)
SM Rezaul Karim with Sheikh Fazle Noor Taposh with Abdur Razzak with Ajia Begum, Advocates-For the Petitioners.
Abdus Salam Mondol, Deputy Attorney-General with Bahauddin Ahmed Assistant Attorney-General-For the Respondent Nos. 1-4.
Ahsanul Karim with Md Khairul Alam Chowdhury and Tanveer Hossain Khan. Advocates-For the Respondent No.5.
AFM Mesbahuddin Ahmed. Senior Advocate-For the Added Respondent No.8.
Judgment
Nozrul Islam Chowdhury J: This Rule Nisi is directed against a tender notification vide memo No. gy‡Rc 0011/06/12/92 dated 7-5-2012 as per Annexure-‘D’ to this writ petition seeking further declaration that the said Annexure-D is without lawful authority and is of no legal effect and as to why the respondents should not be restrained by an order of injunction from leasing out the land of Maowa Riverport and its foreshore land in any manner and/or such other or further order or orders passed as to this court may seem fit and proper.
2. Mr SM Rezaul Karim the learned Advocate appearing with Mr Sheikh Fazle Noor Taposh has placed this writ petition before this court including the supplementary affidavit, additional supplementary affidavit and the affidavit in reply and then submits that Maowa Ferry Ghat has been declared as Maowa Riverport by Gazette notification date 5-5-2004 under Port Acts 1908, therefore, Ferry Acts 1985 has got no application in respect of the said Riverport and upon declaration of Maowa Ferry Ghat as Maowa Riverport all authorities of the above port vested upon the Conservator and the said Conservator is BIWTA, accordingly, the BIWTA being the Conservator of the riverport, is the only lawful authority while the respondent No. 5 (Zilla Parishad) has no locus standi to claim or lease out Maowa Ferry Ghat which are within the territory of the Maowa River port. Therefore, the learned Advocate for the petitioner submits that the Zilla Parishad or the respondent No.5 has no authority whatsoever to lease out Maowa Riverport as contemplated by them vide Annexure-D of the writ petition, therefore, the said tender notification vide Annexure-D is liable to be declared to have been issued without lawful authority and is of no legal effect.
3. Mr Ahsanul Karim, the learned Advocate .
appearing for the respondent No.5 submits that State Acquisition Act, 1951 has taken over all rent receiving interest in respect of Fisheries, Ferries and all that which includes Maowa Ferry Ghat, therefore, by operation of the State Acquisition and tenancy Act all authorities in respect of the Ferry Ghat in question vests with the government without any encumbrance and in such view of the matter, authority over the Ferry Ghat in question if intended by the government to be handed over to any Ministry then such authority has to be explicitly expressed either in the law or any rules framed there under but in the absence of any such specific authorities mere declaration of a Ferry Ghat into a riverport does not automatically Seases the power to manage and lease out the Ferry Ghat by Zilla Parishad which has all along been doing the same since 1987. Pointing out to Annexure- X-3 of the affidavit-in-opposition filed on behalf of the respondent No.5 Zilla Parishad. Mr Ahsanul Karim the learned Advocate submits that the Ministry of Local Government Rural Development and Co-operatives by its memo No. ¯§viK bs c‡RB-4/†Rc-11/12(Ask-1) ZvwiLt 9-4-2000Bs directed the Zilla Parishad namely the respondent No.5 to lease out the said Ferry Ghat through sealed tender and said order has still been in force therefore, the tender notification Annexure-D to the writ petition has been issued and on the basis where of lease in respect of the said Ferry Ghat has already been granted in favour of respondent No.
8 who has already taken over possession thereof in the meantime. Both the learned Advocates namely, Mr SM Rezaul Karim and Mr Ahsanul Karim have placed very many papers in support
of their respective ministries over the self same ferry ghat and those have been annexed by way of affidavit, supplementary affidavit, additional affidavit and reply to all those. Upon consideration of the aforesaid materials on record and on hearing the learned Advocates from bothsides it transpires that the question of leasing out of Maowa Ferry Ghat which has in the meantime declared as Maowa Riverport is the subject matter of the dispute and both BIWTA and Zilla Parishad are claiming exclusive authority in respect of the same. The learned Advocate for the petitioner has further placed the gazette notification as Annexure-B to the writ petition wherefrom it transpires that Maowa Ferry ghat has been declared as Maowa Riverport and such declaration is the root of the dispute which is before us. Petitioner’s side claims that the declaration of the ferry ghat as riverport has automatically vested its authority of management and control in favour of the BIWTA while the respondent No.5 claims that though the ferry ghat has been declared as river port it does not automatically confer any authority to BIWTA to lease out or control the said river port.
4. Having gone through the issue involved in this writ petition and upon consideration of the materials placed before us we find that no explicitly expressed authority has been given to either side about the management control or leasing out of the ferry ghat now declared as river port although we have seen that this ferry ghat has all along been managed, controled and leased out by the respondent No.5 including the current year. It further transpires that a tag of war has been going on between two Ministries of the government and this sort of tussle is not at all desirable, it has to be settled once for all. The dispute over the control, management and leasing out of Maowa Ferry Ghat, now declared as river port can only be resolved finally and completely by way of a policy decision at the highest level of the government and the said dispute is not at all justifiable in exercise of the writ jurisdiction of this court. Therefore, we find that the instant writ petition is not maintainable.
Accordingly, this Rule is discharged without any order as to costs.
