IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION

PRESENT:

Mr. Justice Obaidul Hassan, Chief Justice Mr. Justice Borhanuddin

Mr. Justice M. Enayetur Rahim

Mr. Justice Md. Ashfaqul Islam

Mr. Justice Md. Abu Zafor Siddique

Mr. Justice Jahangir Hossain

CIVIL APPEAL NO. 456 OF 2017       (Arising out of C.P. No. 895 of 2017)

Bangladesh Tailbahi Jahaj Malik .... Appellant Samity, represented by its President

-Versus-

Chairman, Bangladesh Inland Water ....Respondents Transport Authority (BIWTA) and others

For the Appellant :Mr. Kamal-ul-Alam, Senior Advocate

with Ms. Shahanaj Akhter, Advocate instructed by Mr. Zainul Abedin, Advocate-on-Record

For Respondent No. 1 :Mr. A.M. Amin Uddin, Senior

Advocate with Mr. Md. Obaidur Rahman Mostafa, Advocate, Ms. Sabrina Zerin, Advocate and Mr. Md. Abdul Quiyum, Advocate instructed by Mr. Mohammad Abdul Hai, Advocate-on-Record

Respondent Nos.2-5 Not represented

Date of Hearing :18.10.2023 and 15.11.2023 Date of Judgment  :23.11.2023

J U D G M E N T

Md. Ashfaqul Islam, J: This civil appeal by leave is directed

against the judgment and order dated 22.08.2016, passed by the High Court Division in Civil Revision No. 1575 of 2006 making the Rule absolute.

Facts, in short, are that the present appellant along with respondent No.2, as plaintiffs instituted Title Suit No. 199 of 2001 before the 1st Court of Assistant Judge, Dhaka, praying for declaration that the application of Conservancy and Pilotage Service Fees Rules, 1990 over the Costal Ships and Tankers of the plaintiffs established under the Merchants Shipping Ordinance, 1983 is illegal and also for declaration that the letters dated 17.06.2001 and 25.6.2001 and circular vide letter No. M- 2/15/47(4) are illegal and unlawful.

The trial Court dismissed the suit. Against which appeal was preferred and the same was allowed by setting aside the judgment and decree of the trial Court. Challenging the said decision the defendants filed Civil Revision before the High Court Division and obtained Rule. A Single Bench of the High Court Division made the Rule absolute upon setting aside the judgment and decree of the appellate Court and affirming those of the trial Court. Hence, the plaintiff No. 1 preferred civil petition for leave to appeal before this division and obtained leave giving rise to this appeal.

Mr.  Kamal-ul-Alam,  the  learned  Senior  Advocate appearing  for  the  appellant  submits  that  the  High Division  committed  an  error  of  law  in  passing  the impugned judgment and order holding that having not been vested with any right to declare any law void the court of appeal below erred in declaring the imposition of conservancy fees under Section 3 of the -                     ,  ১৯৯০  (hereinafter referred to as Bidhimala,

1990) as illegal.

Next  he  submits  that  the  conservancy  fees  are leviable only on as defined in Bidhimala, 1990 and payable by the of registered under the provision of the said Bidhimala, 1990 and as such the demands made in the impugned notices for payment of conservancy fees from the members of the plaintiffs’ samity(Association) whose tankers and coasting ships ply in the river ways which are not but are

coasting Ships as defined and whose “ownerships” are registered under the provisions of Merchant Shipping Ordinance,  1983.  Without  considering  the  aforesaid provisions of law the High Court Division erred in law in abruptly passing the impugned Judgment and order.

He  further  submits  that  the  members  of  the plaintiffs’  samity(Association)  are  the  owners  of ships/tankers as defined in Section 2(47) and “coasting ship” as defined in section 2(4) of the Merchant Shipping Ordinance, 1983 which are not as defined in

of Bidhimala, 1990read with Section-2(e) and (f) of the Inland shipping Ordinance, 1976 and the members of plaintiffs’ samity(Association) are the  /owner of the said vessels as defined in Section-2(26) and the same are registered under Section 14 and 26 of the Merchant Shipping Ordinance, 1983, consequently the High Court Division was wrong in law in not holding that the said tankers and coasting ships of the members of plaintiffs’ samity(Association) not being as defined in

of Bidhimala, 1990 the conservancy fee is not payable by the members of plaintiffs’ samity(Association).

On the other hand Mr. A.M. Amin Uddin, the learned Senior Advocate appearing for the respondent No. 1 made his submissions supporting the impugned judgment and order of the High Court Division.

We have heard the learned Advocates of both sides and perused the impugned judgment and order of the High Court Division together with the decisions of the courts below.

It is admitted that the ships or the vessels owned by the members of the plaintiffs’ Association are mainly ship and vessel in the coastal area but they have to transport petroleum fuel and other goods within the Inland  River  Way.  And  the  Bangladesh  Inland  Water Transport Authority (BIWTA) is authorized for imposition fees upon the costal and Oil Tanker which are running or transporting within the Inland Water Ways under the provision  of  Bidhimala,  1990  which  was  enacted  in pursuant to Bangladesh Inland Water Transport Authority Ordinance, 1958. The relevant provisions of the said Bidhimala are produced verbatim as under:-

“  ,    ,      ৪২৮-  ই /৯০/ /    -২/৯০- Bangladesh Inland Water Transport Authority Ordinance, 1958 (E.P. Ord. LXXV of 1958) section 19 sub-section (3) [  section (2) clause

(VII)

(Ord. No. LXXII of

1976)

(self-propelled vessel)”

Pertinently, let us see the definition of Inland Ship as envisaged in the Inland Shipping Ordinance(Ordinance No.LXXII of 1976). Section 2(e) defines Inland Ship. It enjoins the definition which is worded as under:

“2(e) “inland ship” means every description of vessel ordinarily plying on inland waters and propelled wholly or in part by steam, liquid fuel, electricity or any other mechanical powers and includes a sailing boat, dumb barge and other craft which is not so propelled but is towed or pushed by a vessel so propelled.”

Combined reading of both the impugned Bidhimala 1990 and the Ordinance 1976 justify the imposition of conservancy fees as aforesaid.

Now, let us further evaluate the entire case on the appraisal of the imposition of the conservancy fees under the Bidhimala 1990.

The learned Advocate for the appellant claims that imposition any conservancy fees by Bidhimala, 1990 shall be double jeopardy for the members of their association because they have to bear taxes for the Coastal Authorities as well as Inland Authorities. But it reveals that the coastal authorities and the Inland River Authorities are different jurisdictions with different types of services, therefore, as per Bidhimala, 1990 any imposition cannot be declared illegal or without lawful authority unless or until Bidhimala is declared illegal.

The appellate court below came to a conclusion that any civil court can entertain any matter where interpretation in respect of law to be declared illegal, even the constitutional provision, within the framework of Order XXVIIA Rules 1 and 2 of the Code of Civil Procedure which reads as follows:-

“R.1. In any suit in which it appears to the court that any substantial question as to the interpretation of constitutional law is involved, the court shall not proceed to determine that question until after notice has been given to the Attorney General for Bangladesh if the question of law concerns the Government***.”

The findings of the appellate Court below banking on Order XXVIIA Rules 1 and 2 as mentioned above leads to absurdity, simply because the said law enjoins that where any substantial question as to the interpretation of constitutional law is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for Bangladesh. To our utter surprise it reveals that the Appellate Court below even did not act accordingly. The findings of the High Court Division on that score is well founded. When the lower appellate Court took notice of Order XXVIIA of the Code of Civil Procedure, it could easily notify the Attorney General of Bangladesh in terms of the said provision of the Code of Civil Procedure.

 To sum up, first of all, we endorse the view of the High Court Division that the imposition of fees in question  is  not  a  double  jeopardy.  Rather  it  is absolutely justified.

In the context of adjudicating such a case before this Division where the crucial question of balancing commercial  interests  and  environmental  stewardship between  parties  as  well  as  that  of  the  river  is concerned, we grapple with the question of imposing conservancy fees on sea-going oil tankers that traverse inland waters and utilize rivers to access the open sea via estuaries. The ship-owners, in their defense, contend that  they  fall  outside  the  category  of  vessels exclusively navigating inland rivers. They further argue that imposing such fees would amount to double jeopardy and inflict undue hardship upon them. However, a closer examination reveals compelling reasons for rationalizing these fees.

In rationalizing the imposition of conservancy fees on sea-going oil tankers navigating inland waters and rivers, despite ship-owners' arguments of exemption and double jeopardy, several points can be asserted. Firstly, the  definition  of  a  river  includes  any  watercourse naturally flowing towards a sea, estuary, or lake. Sea- going vessels utilizing these riverways for navigation inherently fall within the purview of vessels using inland waters. Thus, they are subject to relevant fees aimed at maintaining the navigability and health of these watercourses. Secondly, while ship-owners may contend that such fees constitute double jeopardy, it must be underscored that the purpose of conservancy fees is distinct  from  other  maritime  charges.  These  fees specifically contribute to the upkeep and preservation of inland waterways, which are crucial for maritime commerce and  environmental  sustainability.  Therefore,  the imposition of conservancy fees is not duplicative but rather serves a distinct regulatory purpose. Moreover, the argument that sea-going vessels are not directly benefiting  from  inland  waterways  neglects  the interconnectedness of maritime transportation networks. Even if primarily bound for the sea, these vessels rely on riverways for access to ports and estuaries, thereby benefiting from the infrastructure and maintenance funded by  conservancy  fees.  Lastly,  acknowledging  the significant government expenditure required to maintain river health and navigability underscores the necessity of equitable contributions from all users, including sea- going  vessels.  In  conclusion,  the  imposition  of conservancy fees on sea-going oil tankers navigating inland  waters  is  justifiable  both  legally  and practically, ensuring the sustainable management of vital maritime resources for the benefit of all stakeholders.

It is to be understood by all stakeholders that the conservancy fees are not punitive measures but rather investments in sustainable river management. Ship-owners, as beneficiaries of efficient river navigation, play an essential role in safeguarding these vital waterways. By recognizing the interconnectedness of rivers, estuaries, and the open sea, we can uphold both economic interests and environmental well-being.

The case in hand is indeed of such an impact which as we have discussed above manifestly maintained that the High Court Division was absolutely justified in holding that the Court of appeal below committed an error of law by allowing the appeal and thereby declaring the imposition of conservancy fees by section 3 of the Bidhimala, 1990 illegal and hence cannot be gainsaid that there is a denial of justice in any manner. The judgment and order passed by the High Court Division is elaborate, speaking and well composed. We are not inclined to interfere with the same.

Accordingly, the appeal is dismissed without any

order as to costs.

J. J.

J.

J. J.

J.

The 23rd November,2023

/Nayeem Firoz, RRO & Ismail,B.O./*2085*