Lalit Kr. Das vs The State of Assam

D.N. Baruah, J.—In this application under Article 226 of the Constitution of India, Petitioner has challenged the impugned order No. FISH. 228/93/126 dated 12.4.94 passed by the Deputy Secretary to the Government of Assam, Fishery Department, the 2nd Respondent, and prayed for issuance of an appropriate writ or direction.

The facts of the case in short are as follows:

The Petitioner is the President of "Kumar Kaiborta Gaon Min Silpa Samabai Samity Limited", Jorhat, for short "the Petitioner society". This Society is a fishery cooperative society registered under the Cooperative Societies Act, 1949 and is formed with 100% actual fisherman Community living in the neighbourhood of No. 11 Kokila Fishery. The first Respondent settled the said fishery with the Petitioner for a period of three years, which was thereafter extended for another two years, Before expiry of the period of lease, the Petitioner society prayed for extension of another term of three years on various grounds mentioned in the petition filed before the State Government. In pursuance of an order dated 16.12.92, 3rd Respondent submitted a report dated 23.2.91 stating that the Petitioner incurred loss for the reasons beyond their control. However, the 1st Respondent settled the fishery in question with 5th Respondent society for a period of three years in purported exercise of power under proviso to Rule 12 of the Fishery Rules.

This order of settlement was challenged in a writ petition (Civil Rule No. 956/93). This Civil Rule was disposed of by this Court remanding the matter to the State Government for disposal of the application for extension of lease filed by the Petitioner. The State Government rejected the petition by order dated 14.5.93 and settled the fishery concerned with the 5th Respondent. This order was also challenged by in another writ petition (Civil Rule No. 1289/93) by the Petitioner. During the pendency of the said Civil Rule it transpired that there was no cooperative society under the name and style of "Nemati Anchalik Kaiborta Sampradai Thika Aru Min Samabai Samity Ltd.". On the other hand there was a society under the name and style of ''Nemati Anchalik Koibarta Sampradai Thika Samabai Samiti Ltd". Thus according to the Petitioner, the 5th Respondent obtained the order of settlement by committing fraud. When this fact came to the notice of the Government the Petitioner as well as 5th Respondent were directed to be present before the Government. Accordingly, both the Petitioner and 5th Respondent appeared More the Minister, Fisheries. After hearing the parties, the State Government by a W/T message withdrew the notice dated 4.6.93 and the 5th Respondent was removed from operating the fishery in question. This order was also challenged by the 5th Respondent in another Civil Rule (Civil Rule No. 1510/93). Meanwhile, (sic) judgment and order dated 27.8.93 this Court allowed the writ petition (No. Civil Rule No. 1289/93) and quashed the order dated 19.5.93. Against this order of Single Judge, the Petitioner filed a writ appeal (Writ Appeal No. 583 (T)/93). The appellate Court set aside the judgment of the learned Single Judge passed on 27.8.93 in Civil Rule No. 1289 of 1993 and directed the Government to proceed to settle the fishery in question in accordance with law. Against that appellate judgment the 5th Respondent moved Supreme Court by filing a SLP (SLP (C) No. 16304/93). The Supreme Court granted special leave and thereafter disposed of the appeal by modifying the appellate judgment dated 3.9.93 passed by the Division Bench of this Court in Writ Appeal No. 583 (T)/93. While disposing the appeal the Supreme Court observed thus:

We are not inclined to interfere with the order of the High Court remanding the case to the State Government for fresh decision. We are, however, of the view that the High Court was not justified in going into the eligibility or otherwise of the Appellant society to claim fishery right. We leave it to the State Government to go into the eligibility of each of the claimants and take fresh decision for grant of fishery lease.

After the judgment of the Supreme Court in Civil Appeal No. 7405/93 dated 3.12.93 the Petitioner as well as the 5th Respondent were notified by the Additional Deputy Commissioner that the matter would be heard on 17.1.94. However, on that day the matter could not be heard. Ultimately, it was fixed for 23.1.94 and on that day also though the Petitioner was present the matter could not be heard and the Petitioner was informed that next date would be communicated later. However, without giving any notice to the Petitioner the matter was disposed by Annexure-7 order dt. 9.3.94 cancelling the settlement given to the Petitioner and settling the fishery in question with 5th Respondent.

This order of settlement was also challenged by the Petitioner society in yet another civil rule (Civil Rule No. 1083/94). This Court disposed of the aforesaid civil rule by judgment and order dated 18.3.94 setting aside the settlement given to 5th Respondent and remanding the matter to the State Government to decide the matter afresh in accordance with law.

The matter was again heard by the State Government and disposed of the matter by Annexure-9 impugned order dated 12.4.94 upholding the Annexure-7 order of settlement dated 9.3.94 giving Settlement of the fishery in question to the 5th Respondent. According to the Petitioner, the 5th Respondent being not a fishery cooperative society as is evident from the report dated 27.5.93 issued by the 4th Respondent and also from the bye-laws of the said Society, the State Government, Fishery Department ought not have invoked the power under proviso to Rule 12 of the Rules, therefore, the settlement given to 5th Respondent was illegal, without jurisdiction and contrary to the provisions of the Fishery Rules. Therefore, the settlement given to the 5th Respondent society was to be set aside. Hence the present petition.

5th Respondent has filed affidavit-in-opposition challenging the averments made in the petition and also challenging that the Petitioner society was a fishery cooperative society consists of 100% actual fisherman of fishing population belonging to Scheduled Caste community. According to the 5th Respondent, the Society fulfills all the conditions necessary to invoke proviso to Rule 12 of the Fishery Rules. The 5th Respondent also refuted the averments of the Petitioner and stated that their society, namely, "Nimati Anchalik Koibarta Sampradai Thika Aru Min Byabasai" is in existence although the earlier name was different which was later changed.

I heard both sides, also perused the records and judgment passed in the Writ Appeal No. 317/94 dated 9.8.94 arising out of the Civil Rule No. 1814/94. In the said writ appeal, the Division Bench of this Court while disposing of the appeal observed thus:

For the reasons stated above, we are of the opinion that the order passed by the learned Single Judge in so far as the quashing of the impugned order of the settling authority dated 11.5.94 is maintained and we order accordingly. The consequential directions given by the learned Single Judge settling the fishery in question with the Respondent No. 4 and also the directions given by the learned Single Judge directing the Respondents to settle the Laipulia Fishery with the Appellant are, however, liable to be set aside, which we hereby do.

The said judgment further observed that it was not disputed that M/s Parghat Kaibarta Min Samabay Samity Ltd. was in possession of the fishery since 27.5.94 and looking into the entire facts of the case, the Appellate Court was of the opinion that till the competent authority of the State Government decide the question of settlement of the fishery, the possession of the fishery should remain with M/s Parghat Kaibarta Min Samabay Samity Ltd. and thereafter, the fishery would be delivered to the Society in whose favour the order of settlement would be passed by the Competent Authority of the State Government.

The counsel for the Petitioner has strenuously argued that the Annexure-9 order of settlement is illegal, without jurisdiction, inasmuch as, the 5th Respondent society is not a fishery cooperative society which is evident from the name of the Society itself. The bye-laws of the said Society and the reports received from the authorities also show that 5th Respondent is not a fishery cooperative society. Proviso to Rule 12 of the Fishery Rules is not applicable in the case of 5th Respondent. Besides, the reports submitted indicate that the Petitioner is a non-existent society. On the other hand, learned Counsel appearing for 5th Respondent supports the impugned settlement order passed in favour of the Respondent society. learned Counsel for the 5th Respondent further submits that the settlement given in favour of 5th Respondent is in accordance with the proviso to Rule 12 of the Fishery Rules, therefore, no interference is called for.

The Bye-laws of the 5th Respondent has been placed before this Court. Page-''ka'' of the Bye-laws of the Respondent Society refers to a Memorandum of Industrial Cooperative Society and registered u/s 9 of the Act II of 1912. The scheme and object of the Act is to facilitate the formation of Cooperative Societies for the promotion of thrift and self help among agriculturists, artisans and persons of limited means. The printed portion of the bye-laws do not indicate that the Respondent society is a fishery cooperative society. Aims and Object of fishery cooperative societies are widely different from that of the Industrial Cooperative Society and there is specific statute. From the Bye-laws placed before the apparently it appears that it is a cooperative society formed under Cooperative Societies Act, 1912.I find some land written portion in the bye-laws placed before me. These hand written portions tend to show that Respondent society is a Fishery Cooperative Society formed with actual fishermen of the fishing population. Under what circumstances these have been written has not been explained. Therefore, on the basis of this bye-laws it is not possible for this Court to determine whether 5th Respondent society is actually a fishery Cooperative society within the meaning of proviso to Rule 12 of the Fishery Rules.

I have perused the WT message dated 21.6.93 addressed to fish, Assam, Dispur by the Deputy Commissioner, Jorhat, whereby it was informed that there was no registered society under the name and style "Nemati Anchalik Kaivarta Sampradai Thika Aru Min Samabai Samittee Ltd," but a Cooperative Society Registered in the year 1990-91 under the name "Nimati Anchalik Kaivorta Sampradai Thika Samabai Samity Ltd." is in existence and this is the present lessee of No. 11 Kokila Fishery. The Assistant Registrar of Cooperative Societies sent a detailed report dated 17.6.94, stating inter alia, that the nomenclature of the Society as indicated in the letter dated 16.5.94 should be "Nemati Anchalik Kaibarta Sampradai Thika Samabai Samity Ltd." instead of "Nemati Anchalik Kaibarta Sampradai Thika Aru Meen Samabai Samity Ltd." as per records.

An application was submitted to the ARCS, Jorhat on 15.3.90 by one Hem Das and 44 others. The object mentioned in the application was to organise and register the said society for trading, so that, they could take up fish trade and business through the Society to ameliorate their living conditions as all of them were flood affected persons belonging to Scheduled Caste Community. They are also economically backward and unable to improve their plight individually. On receipt of the said application and after preliminary departmental enquiry, the application was forwarded to the Zonal Joint Registrar of Cooperative Societies, Jorhat to accord necessary permission. Permission was thereafter accorded and a Society was formally organised and registered under the name and style of "Nemati Anchalik Kaiborta Sampradai Thika Samabai Samity Ltd." The object of the society as per its registered Bye-laws are "to perform contract and supply works in Government, Semi Government, Private Institutions and to take up fish trade." I have also seen the comments made by the Additional Deputy Commissioner to the Government of Assam.

The impugned Annexure-9 order dated 12.4.94 has been passed after hearing both the parties. i.e. M/s. Kumar Koibarta Gaon Mm Silpa Samabai Samity Ltd. and M/s Nimati Anchalik Koibarta Sampradai Thika Aru Min Samabai Samity Ltd. on 25.3.94. As per the impugned order the authority after perusal of the report and order of this Court and the Supreme Court found mat the Respondent society was eligible to carry trade on fish including fishing activities and thereby upheld the settlement given in favour of Respondent society under proviso to Rule 12 of the Settlement of Fishery Rules.

The Apex Court by order dated 3.12.93 directed the Government to reconsider the eligibility of the 5th Respondent to claim the fishery rights. As per proviso to Rule 12 the State Government may settle any registered fishery directly with Fishery Cooperative Society formed with 100% actual fisherman of the fishing population in the neighbourhood of the fishery concerned and belonging to the Scheduled Caste of the State or Maimal Community of the Cachar District etc. But the bye-laws of the 5th Respondent shows that it is a cooperative society registered under the Cooperative Societies Act, 1912 (Act II of 1912). In the report placed before this Court I find there is no such fishery Cooperative Society in the name of Nemati Anchalik Kaiborta Sampradai Thika Aru Min Samabai Samity Ltd. From the petition as well as from the records available before me it is not possible to come to a definite finding that the 5th Respondent is a fishery cooperative society engaged in fishing activities i.e. formed by 100% actual fishermen of the fishing population in the neighbourhood of the fishery concerned and belonging to the Scheduled Caste Community etc. While passing the impugned order (Annexure-9) the authority did not make all efforts to find out as to whether the 5th Respondent Society is a Fishing Cooperative Society to get settlement under proviso to Rule 12. This enquiry was all the more necessary in view of different reports from the various authorities and the provisions of the Bye-laws of the 5th Respondent society. Hence, this Court in exercise of power under Article 226 of the Constitution of India cannot embark upon to make all these enquiries and it requires thorough enquiry by a person, who is actually dealing with the matter.

In view of the above, I set aside the impugned Annexure-9 order dated 12.4.94 and remit the case to the Government to make thorough enquiry about the eligibility of the 5th Respondent society to claim the right of settlement of the fishery in question under proviso to Rule 12 of the Fishery Rules. This must be done as expeditiously as possible, and at any rate, within a period of one month from the date of receipt of this order.

During this period, the fishery in question shall be run departmentally.

With the above direction the petition is disposed of. I make no order as to costs.