Sirajul Hoque and other (Appellants)
Vs.
Bangladesh Inland Water Transport Authority represented by its Chairman and others (Respondents)
Supreme Court
Appellate Division
(Civil)
JUSTICE
Mahmudul Amin Chowdhury CJ
Mainur Reza Chowdhury J
Md. Ruhul Amin J
Md. Fazlul Karim J
Judgment dated : July 3, 2001.
he Inland Shipping Ordinance, 1676 (LXXII of 1976) Section 54
The Time and Fare Table Approval Rules, Rule 15(1) (c)
The Authority may waive the requirements of any or all the Rules provided in the Bangladesh Inland Water Transport Authority (Time and Fare Table Approval) Rules, 1970. Non-compliance of these rules will not make the time table issued under the Rule to be illegal and without any lawful authority…….(6)
Lawyers Involved:
Gobinda Chandra Tagore, Advocate (appeared with the leave instructed by Sharifuddin Chaklader Advocate on-Record—For the Appellants. (In both the appeals)
Abdul Wadud Bhuiyan, Senior Advocate Bodruddoza, Advocate with him instructed by Firoz Shah Advocate-on Record –For respondent No 5 (In both the appeals).
Ahsanullah Patwari, Advocate on Record –For Respondent Nos. 1-4 (In both appeal).
Civil Appeal Nos. 1 and 2 of 2001.
(From the judgment and order dated 2nd November 2000 passed by the High Court Division in Writ Petition Nos. 3259 of 2000 and 4169 of 1999).
JUDGEMENT
Mainur Reza Chowdhury J.- These two appeals arisen out of leave granted by this Division on 27.11.2000 in Civil Petition Nos. 1037 and 1038 of 200 referred by the appellants against the common judgment and order dated 2-11-2000 passed by the High Court Division in Writ Petition 3259 of 2000 and 4169 of 1999 discharging rules.
2. The short facts as stated by the appellants are that for about 20 years the appellants have been plying their registered Vessels. MV Nagorik and MV Sureswar on every alternate day on Dhaka Vojeswar Angaria Route and their down service No.2 reach WAPDA Ghat at 8-00 hours and due to recession of navigation in the river the same service depart at the same time i.e. 8-00 hours and the petitioners in the summer ply their 7 vessels by rotation in three services for inadequacy of passengers on the Dhaka-Balurchar via Vederganj Ekarkandi route and their down service No. 4 reach Sureswar at 8-20 hours and in the winter ply vessels on the said Dhaka WAPDA route and their down service Nos. 4 and 6 depart from WAPDA Ghat at 7-30 hours respectively. While appellants were plying their vessels in accordance with the aforesaid time table respondents on 20-7-1998 issued a new and additional time table having their time of departure from WAPDA Ghat at 7-00 hours and from Dhaka at 13-00 hours in favour of respondent No. 5 in respect of his vessel MV Arabia. A letter was issued on 14-7-1998 by Bangladesh Inland Water Transport Authority requesting respondent No. 2 not to approve such timetable because during summer WAPDA Ghat becomes a middle station and they also requested respondent to cancel the timetable for smooth operation of Water Transport. It was also decided in a meeting of the Bangladesh Inland Water Transport Authority that relevant rules and practice were not followed in approving the time table. But in spite of that a temporary time table for the aforesaid route in favour of respondent No. 5 was issued in respect of Vessel MV. Mouchak 4 which on transfer was renamed MV Miraj. Writ petitions were filed which were disposed of by the High Court Division, but thereafter by Memo dated 22-9-1999 Bangladesh Inland Water Transport Authority hereinafter referred to as ‘the authority’ again issued a fresh time table against which Writ Petition No. 4169 of 1999 was filed and a Rule and injunction was obtained. In the meantime according to respondents a fresh survey was conducted and on the basis of that survey a new time table was issued against which the appellants filed Writ Petition No. 3259 of 2000. Both the writ petitions were heard by a Division Bench of the High Court Division along with Writ Petition No. 4127 of 2000 and by judgment dated 2-11-2000 the Rules were discharged.
3. The main contention of the learned Advocate for the appellants is that the respondent No. 5 had no route permit to ply his vessel in these routes. In the absence of a route permit as required under section 54 of the Inland Shipping Ordinance, 1976 the issuance of time route in favour of the respondent No. 5 was illegal and without any lawful authority. The learned counsel also took us through Rules 3, 4, 5, 6, 7, 8, 11, 14 and 15 of the Bangladesh Inland Water Transport Authority Rules of 1970 which were not followed and, as such, the impugned time schedule issued to respondent No. 5 should have been declared to be without any lawful authority and of no legal effect by the High Court Division. Section 54 of the Inland Shipping Ordinance 1976 provides as follows:
“No inland ship engaged in carrying passengers shall proceed on any voyage or be used for any service for mercantile purposes:
(a) unless she has a valid route permit granted by the Government or an authority authorised by it in this behalf and an approved time table.
(b)…………………..
(c)…………………..
4. It appears that a route permit is necessary before permission can be granted for plying vessel by issuing a time schedule. However from the rubber seal on timetable issued for MV Miraj it appears that the Authority issued route permit under section 54 of the Inland Shipping Ordinance, 1976. The additional timetable issued to MV Miraj on 29-6-2000 also shows that the time table was issued after traffic survey was carried out by Authority concerned as per direction of the High Court Division. It is not the case of the appellants that the route permit issued in favour of MV Miraj was not issued according to the Route permit Rules. Since there is a route permit the allegation that the vessel MV Miraj did not have any route permit to ply on this route is not correct.
5. The other contention is that the Time and fare Table Rules have not been followed prior to the issuance of time table to MV Miraj. To this the respondent has submitted that the time table issued in favour of MV Miraj was in exercise of power given to the respondent to issue such time route permit when required in public interest Rule 15 provides as follows:
“15. Service when required in public interest.- (1) Notwithstanding anything contained in these Rules, the Authority, in the following cases may waive the requirement of any or all the Rules and direct owner to ply his vessels on any route as per time and fare tables approved temporarily in his favour in respect of particular vessels, if in the opinion of the Authority such action is warranted in the public interest
(a) In case of emergency, natural calamity and safety and security of the State.
(b) In case a vessel is deployed temporarily on a route other than its own route under compelling circumstances, such deployment may be allowed for a week, and
(c) In case of breakdown of the existing vessel which is not likely to be recommissioned within a period of 7 days or where additional service is required or a new vessel with better amenities and facilities is proposed be deployed in place of the existing one.”
6. The impugned time table was issued under Rule 15(1) (c) as additional service was required. This Rule provides to the Authority power to give direction on any owner to ply his vessel on any route as per time table in the public interest. This Rule also provides that in such case the Authority may waive the requirements of any or all the Rule provided in the Bangladesh Inland Water Transport Authority (Time and Fare Table Approval) Rules, 1970. Therefore even if it is conceded that certain Rules have not been complied with, the non-compliance of these rules will not make the time table issued under Rule 15(1) (c) in favour of MV Miraj to be illegal and without any lawful authority on the ground of non compliance of the rules. It was contended that the Rule 15(1) (c) cannot be relied upon if the requirement of section 54 of the Inland Shipping Ordinance 1976 to have a Route permit has been violated. We have seen that while issuing the timetable the Authority did issue a route permit under section 54 of the Ordinance.
7. In the light of above observation and the relevant laws and the rules discussed we do not find any illegality in the judgment and order passed by the High Court Division in not declaring the impugned timetable to be illegal and without any lawful authority.
The appeals are dismissed without any order as to costs.
Ed.
Source : 54 DLR (AD) (2002) 30