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Judgment
D.N. Baruah, J.—In this writ application under Article 226 of the Constitution, the Petitioner has challenged the Annexure -II order dated 14th August 1989 issued by the 2nd Respondent extending the term of lease of No. 43 Khamrangajan and Khamranga Beel Fishery in favour of 4th Respondent for a period of three years with effect from 1.4.93 and prayed for issuance of appropriate writ for quashing the said order.
The case of the Petitioner society is that 4th Respondent is a sitting lessee of the aforesaid fishery and has been enjoying the fishery for the last 18 years. The first settlement was made in 1974. According to the Petitioner the last extended term of lease was lo expire on 1.4.93 and on coming to know of this, Petitioner decided to bid for the fishery. However, later on the Petitioner came to know that the Respondent extended the lease for further term of three years w.e.f. 1.4.93 in favour of 4th Respondent. The extension order was passed before expiry of the term of previous extension in purported exercise of powers under proviso to Rule 8(b)(ii) of the Rules for settlement of Fisheries, According to the Petitioner, this Rule does not envisage any extension during the period of settlement, therefore, the order was passed arbitrarily, illegally and in violation of Rule and also contrary to the object and spirit of the Rules. Hence the present petition.
I have heard Mr. N.M. Lahiri, learned Counsel for the Petitioner, Mr. S.N. Bhuyan, learned Counsel for 4th Respondent and also Mr. B. Choudhury, learned Government Advocate for the State.
According to Mr. Lahiri the extension order was passed in purported exercise of powers conferred by proviso to Rule 8(b)(ii) of the Rules of settlement for Fisheries without any valid reason. There was no reason why this order should have been passed. The impugned order Annexure-II does not show how this power under proviso to Rule 8(b)(ii) could be exercised during the period of settlement. According to him, the impugned order indicates that, state Government exercised the power under proviso to Rule 8(b)(ii) of the Rules for Settlement of Fisheries, but in the facts and circumstances of the case the said Rule is not applicable, inasmuch as, the extension was not in respect of pisciculture. The order was thus? passed without application of mind. Therefore extension given hy Annexure -II order cannot be sustained in law and liable to he set aside. Learned Counsel further submitted that extension of term of lease under proviso 10 Rule 8(b)(ii) can be made with a lessee who due to any natural cause or for any unavoidable reason beyond the control of the lessee suffers any loss, and the Government may extend the period to enable him to make good the loss. However, such extension can be granted on the basis of official report as to the nature of loss; that too only in exceptional cases for a reasonable period. The impugned order does not indicate anything.
Mr. S.N. Bhuyan, learned Counsel appearing on behalf of 4th Respondent, however, submitted that extension was granted to the lessee as he suffered heavy loss due to flood and for prohibitory order passed by the Government from selling of fish during the relevant period because of widespread disease of fish. Therefore, lessee suffered loss in the year 1988-89 and in order to make good the loss the Government was fully justified in giving extension. There was no illegality or irregularity in giving extension during the period of settlement as the Government can determine the loss only at the time when the lessee suffers loss and Government need not wait till expiry of the term of settlement.
Mr. B. Choudhury, learned Government Advocate supported the impugned Annexure-II order. Me also candidly expressed that proviso to Rule 8(b)(ii) is not applicable in the facts and circumstances of the case, but, it is only misquoting of provision of law and that cannot invalidate the Annexure-II order. In fact the Government exercised the power under proviso to Rule 8(b)(i) and the facts and circumstances of the case fully justify invocation of the power under the said proviso, inasmuch as, in the year 1988-89.there was heavy Hood and widespread disease of fish because of which selling of fish was prohibited and in order to make good the loss, the settlement of the fishery was extended. Mr. Choudhury produced some documents which had been forward by the Government.
On 11.11.86 the 4th Respondent submitted an application before the Government praying for exemption of revenue as there had been disease of fish and Irrigation Department had failed to open the water gate to enable the water to enter into the fishery and as a result he had sustained heavy loss. On the basic of this application the Addl. Deputy Commissioner submitted a report to the Commissioner & Secretary (Revenue) stating about prohibitory order passed by the Government 10 sell fish because of disease and also for the failure of the irrigation department to open water gate for How of water into the fishery which occasioned extensive loss to the lessee. The report refers that there is no provision for exemption of revenue as prayed for by 4th Respondent. The report was submitted by the Addl. Deputy Collector after his visit to the fishery.
Thereafter the Minister of State Fisheries Department called for a report from the Commissioner & Secretary. The Commissioner & Secretary in his office not dated 13.6.89 stated that Rule 16 of the Fishery Rules provides remission of revenue in special cases, where ''refusal of remission will cause serious hardships to the lessee''. He also staled that the lease was for four years and lessee probably could make up his losses during these years. Besides, 4th Respondent has sufficient means lo survive small loss suffered in one season, According lo the Commissioner & Secretary, there was no justification for allowing remission of revenue in this case, because occasional losses are part of business and the lessee should normally be prepared for them. On perusal of the report, the Minister passed order that no remission should be grunted, however, considering the loss sustained by the lessee extension for three years was granted w.e.f. 1.4.93.
Now, it is to be seen whether the impugned Annexure-II order can be sustained in law. In exercise of power conferred u/s 155 and 156 of the Assam Laud and Revenue Regulation. 1886 and by Section 6 of the Indian Fisheries Act, 1897, the Governor of Assam made rules for the Settlement of lender system. Under Rule 8(a) the Deputy Commissioners or the Additional Deputy Commissioners and in case of Sadar Sub-Divisions Sub-Divisional Officers shall be the authorities for settlement of registered fisheries under tender system of sale in their respective jurisdiction. Rule 8(b)(i) empowers the State Government to extend period of lease in some exceptional cases.
Rule 8(b)(ii) the State Government may on the recommendation of the Director of Fisheries extend the period of lease, of a fishery with an intending pisciculturist, who should invariably be the sitting lessee and who agrees to accept such an extension at a revenue and for such oilier additional terms and conditions as may be specified by Government.
Proviso lo Rule 8(b)(ii) relates to granting of extension of lease against pisciculture plan. Hence, in the instant case, admittedly proviso to Rule 8(b)(ii) is not applicable. However, extension can be granted in the present case only under Rule 8(b)(i) if the conditions necessary for such extension are fulfilled.
If we look lo the Rule 8(b)(i), we find that the state Government has power to give extension only in exceptional cases when a lessee suffers certain loss due lo any natural cause or for any unavoidable reasons beyond his control. However, such extension can be granted only for a reasonable period. Besides, such extension can be granted only on the basis of an official report as to the nature and cause of such loss sustained by the lessee, Therefore, in order to exercise this power, the State Government must first have an official report regarding the loss sustained by the lessee and only after ascertaining the loss Government may extend the period of lease for a reasonable period to enable such lessee lo make good the loss. Therefore, the period of extension must have a close nexus with the loss sustained by the lessee. Invariably the quanium of loss is the important criteria for determining the period of extension.
Keeping in view all these aspects, if we look the impugned Annexure-II order it will appear that the extension was given for a period of three years with effect from 1.4.94. Besides, the records placed before me by the learned Government Advocate make the position more precarious. As stated above, the Additional Deputy Commissioner''s Report simply says that the lessee suffered loss because of the Irrigation Department''s failure to open the water gate and also the disease suffered by the fish in the year 1988-89. Bui it is not clear during which period of 1988-89 the lessee suffered the loss. At least this must appear in the official report. The lessee also submitted application for remission of revenue only because of the loss sustained by him. On the basis of this the Minister called for a report from the Commissioner & Secretary fishery as to whether remission could be granted. The Commissioner & Secretary in his note dated 13.6.89 stated that Rule 16 of the Fishery Rules provides for remission of revenue but in the instant case there Was no justification for allowing remission. According to him occasional losses are part of business and the lessee should normally be prepared for them. Besides the 4th Respondent had another four years to go in the settlement and in all probability the lessee would be able to recover the loss. On the basis of this the Minister passed order that no remission should be granted, however, considering the loss sustained by the lessee extension for three years was granted w.e.f. 1.4.93.
A bare reading of Rule 8(b) it will appear that the Deputy Commissioner or, the Additional Deputy Commissioners or Sub Divisional Officers, as the case may be, may extend the period of such lease when the lessee suffers loss due to any natural cause or for any unavoidable reasons beyond the control of the lessees, However, such actions can be made only when there is an official report to this effect, even though such power can be exercised exceptionally in special case for a reasonable period. From the materials available before me I do not find any such official report favouring extension of lease for the loss sustained by the lessee. On the contrary, the Commissioner & Secretary gave a report which only suggests that no extension should be grained. It is true, the authorities have power to grant extension in an appropriate case, but before granting extension the conditions referred to in Rule 8(b) must be fulfilled. If the conditions referred to in the said Rule are not in existence, the authority Ins no power to grant extension.
The notion of the authority can be challenged before a Court of law and the Court may determine the legality of the impugned decision on its own independent Judgment. If the decision of the authority is contrary to what the Court considers to be the right, the action of the authority is liable to be upset. Where the action of the authority is based on finding of fact, the Court is required to examine only the reasonableness of the finding. When the finding is appeared to be rational and reasonably based on evidence, then the judicial review is exhausted even though finding may not be what the Court would have come to the finding. Whether un ''action is characterised as legislative or administrative of quasi-judicial, or whether it is a determination of law or fact, the decision of the expert body, entrusted with power, is generally treated as final and the judicial function is exhausted when it is [found to have a rational basis in law.
Function of the Court is to sec that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which, it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court. A repository of power acts ultra vires when ii acts in excess of his power or in abuse of his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations to the object on the basis of which the authority has been so empowered.
Oven if the statutory order is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction, requisite under legislation. In any one of these situations, it can be well said that the authority did not honestly form its opinion or that in forming it, it did not apply Its mind to the relevant facts, see The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, Barium Chemicals Ltd. v. Co. Law Board.
Coming to the present case in hand, I find that the Minister passed the extension order without caring to know what was the exact loss suffered by the lessee, or whether the lessee actually suffered the loss or not. Moreover, while passing the extension order there was no material before the Minister to ascertain the loss. The application was filed by the lessee for remission of revenue and the Official note indicates that remission in the said case could not be granted. As the remission was not possible, the Minister straight way passed the order for extension. In my opinion this is not envisaged under Rule. Besides, all citizens expect enjoyment of State largess like settlement of fishery and therefore, such entitlement should not be refused unreasonably. The action appears to me is not reasonable Besides the impugned order was passed contrary to the Rules.
In view of the above, I find sufficient force in the submission of learned Counsel for the Petitioner. In my opinion, the impugned Order cannot be sustained. Accordingly, I set aside the Annexure-II order dated 14th August, 1989 passed by the second Respondent. However, I make no order as to costs.