Sudhangshu Kr. Sarkar vs State of Assam Ors.

A.K. Patnaik, J.—In this application under Article 226 of the Constitution, the Petitioner has prayed for quashing the order dated 26.9.96 passed by the Government of Assam in the Fishery Department under the proviso to Rule 12 of the Rules for the Settlement of Fisheries. 19S3, settling the 157/158 Nangalkuri/Chakchaki Fishery of Morigaon District with M/s Boramari Min Samabai Samity Ltd. of which the Respondent No. 5 is the Secretary.

The facts briefly are that the aforesaid fishery was initially settled with the Petitioner for a period of one year with effect from 1.10.92 to 30.9.93. The Petitioner, however filed an application for extension and by order dated 29.8.95, the Government in the Fishery Department settled the fishery in favour of the Petitioner for a further period of 5 years with effect from 1.10.95 to 30.9.2000 to compensate the loss suffered by the Petitioner. Aggrieved by the said order of the Government, the Respondent No. 5 filed a writ petition before this Court numbered as Civil Rule No. 3811/95. On 8.8.96, me learned Single Judge of this Court delivered the judgment in the said Civil Rule holding that the extension in favour of the Petitioner had not been granted in accordance with Rule 8(b) of the Rules for the Settlement of Fisheries and directed the State Respondents to pass fresh orders in accordance with law within a period of one month from the date of receipt of the order and in the meanwhile allow the Petitioner to continue to operate the fishery. Aggrieved, by the said judgment dated 8.8.96 of the learned Single Judge in Civil Rule No. 3811/95, the Petitioner preferred Writ Appeal No. 541/96 before the Division Bench of this Court. But during the pendency of the Writ Appeal, the Government passed a fresh Order on 26.9.96 settling the aforesaid fishery in favour of M/s Boramari Min Samabai Samity Limited for a period of 5 years with effect from 26.9.96 to 25.9.2001 for an amount of Rs. 18,975/- aggrieved by the said order dated 26.9.96, the Petitioner has filed this writ petition for appropriate relief.

The first contention raised by Mr. R.C. Saikia, learned Counsel for the Petitioner, is that the State Govt, should not have hastened to pass fresh order pursuant to the judgment dated 8.8.96 of the learned Single Judge of this Court in Civil Rule No. 3811/95 when the Petitioner had preferred Writ Appeal being No. 541/96 before the Division Bench of this Court. According to Mr. Saikia, the State Government should have in all fairness waited for the disposal of the said Writ Appeal and should not have rushed to pass fresh orders on 26.9.96 settling the fishery in favour of M/s Buramari Min Samabai Samity Ltd. Mr. S.N. Bhuyan, learned Counsel for the Respondent No. 5, on the other hand, contended that a clear direction was given by the judgment dated 8.8.96 of the learned Single Judge in Civil Rule No. 3811/95 to pass fresh orders in accordance with law within a period of one month from the date of receipt of the said judgment of the Court and when no interim orders had been passed by this Court in Writ Appeal No. 541/96, the State Government had no option but to pass fresh orders within a period of one month from the date of receipt of the judgment of this Court. He pointed out that by the said judgment the learned single Judge directed the parties to appear before the authority on 30.8.96 so that fresh orders could be passed in accordance with law within a period of one month as directed by the Court. It is for this reason that the State Government had to pass fresh orders within a period of one month and could not possibly take risk of initiation of contempt proceeding for noncompliance of the orders passed by this Court. I find a lot of force in the aforesaid submission of Mr. Bhuyan. In fact, in the impugned order dated 26.9.96 it has been noted that the Petitioner prayed before the Government not to take any action before disposal of the Writ Appeal preferred by the writ Petitioner against the judgment passed by the learned Single Judge in CR No. 3811/95 but since no interim order was received either from the Court or from the petitioner it was necessary for the Govermnent to pass fresh orders on the settlement in accordance with the directions contained in the said judgment passed by the learned Single Judge. Hence, the first contention of Mr. Saikia fails.

It is next contended by Mr. Saikia that in any case by the judgment dated 8.8.96, the learned Single Judge directed the State Government to consider the report of the Deputy Commissioner relating to loss suffered by the Petitioner during earlier period of settlement with effect from 1.10.95 to 30.10.2001 and thereafter pass fresh orders in accordance with law. Mr. Bhuyan, on the other hand, submitted that the Government has considered all aspects of the matter and has found that the co-operative society of the Respondent No. 5 fulfilled all the conditions of proviso to Rule 12 of the Rules for the Settlement of Fisheries, whereas the Petitioner was an individual and not a co-operative society. The Government was of the view that due preference should be given to cooperative societies and for this reason the fishery was settled with the co-operative society of the Respondent No. 5 Mr. Bhuyan further submitted that he does not dispute the factual position as stated by Mr. Saikia, learned Counsel for the Petitioner, that the fishery was in the 40% category and, therefore, could be settled also with the individual, but he pointed out that direct settlement can be made by the State Government under the proviso to Rule 12 of the Rules for the settlement of Fisheries in favour of a co-operative society even where the fishery belongs to 40% category. In support of his submission, he relied on the decision of this Court in the case of I. Rahman v. State of Assam and Ors. (1983) 1 GLR (HOC) 18.

There appears to be some force in the submission of Mr. Saikia that the impugned order dated 26.9.96 of the Government does not disclose any application of mind to the fact as to whether and to what extent the Petitioner suffered losses during the earlier period of settlement with effect from 1.10.92 to 30.10.95. But the fact remains that the Respondents were directed by the judgment dated 8.8.96 of the learned Single Judge in CR No. 3811/95 to pass fresh orders in accordance with law. Hence extension in favour of the Petitioner could only be granted by the State Government if it was permissible under the law and not otherwise. Mr. Saikia referred to Rule 8(b) of the Rules for the Settlement of Fisheries to show that under the said Rule 8(b), the Government could extend the period of lease supported by official reports as to the nature of cause in exceptionally special cases for a reasonable period so as to enable such lessees to make good the loss. But such extension of the term of lease under Rule 8(b) of the Rules, in my opinion, could only be granted where the initial settlement was made in favour of the Petitioner in accordance with the Rules. Under Rule 8(a) as well as Rule 13 of the Rules for the Settlement of Fisheries a settlement of fishery can only be made in favour of an individual in case of 40% category of fisheries by tender system of sale. This has also been held by this Court in the case of Ganesh Das Vs. State of Assam and Others, The only exception to the settlement by tender system of sale is the proviso to Rule 12 of the Rules where the settlement could also be made directed by the State Government otherwise than by tender. Since the Petitioner is not a co-operative society but an individual such direct settlement could not be made in favour of the Petitioner under proviso to Rule 12 of the aforesaid Rules. In the instantcase, the initial settlement in favour of the Petitioner with effect from 1.10.92 to 30.10.95 appears to have been made not by tender system of sale but by direct settlement by the State Government Hence die question of extension of the term of lease of the Petitioner under Rule 8(b) of the aforesaid Rules did not arise. That apart, the extension that was granted under Rule 8(b) of the aforesaid Rules is only for a reasonable period so as to enable the lessee to make good the loss and not for the entire period of three years for which die earlier settlement was made in favour of the lessee. In the instant case, it appears that even after the initial period of three years with effect from 1.10.92 to 30.10.95, the Petitioner enjoyed the extension under order dated 29.8.95 for a period of one year till the impugned order was passed on 26.9.96 as no interim order had been passed by the learned Single Judge in CR No. 3811/95 staying the sdid extension in favour of the Petitioner under order dated 29.8.95 and while disposing of the said Civil Rule by the judgment dated 8.8.96, the learned Single Judge allowed die Petitioner to continue to operate the fishery till a fresh order was passed by the Government in accordance with the direction of the said judgment. The Petitioner, therefore, has had the opportunity to recoup the loss, if any, for a period of one year through the aforesaid extension. This is another reason as to why the impugned order dated 26.9.96 passed by the State Government should not be interfered with by this Court.

In the result, this writ petition has no merit and accordingly dismissed. No costs.