High Court
Case Details
WP(C) 472/2006 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN
Legal Reasoning
Heard Mr. F. U. Borbhuyan, learned counsel for the petitioner and Ms. B. Dutta, learned Government Advocate, Assam. Issue raised in this writ petition is inclusion of one Md. Ala Uddin (respondent No. 5) and 51 others in a 2nd Class Fishery of Cachar district, locally known a s Vewa, Tiya and Patinga Beel of Mouza Baroitoli Part-II Kalain. Petitioner has challenged the legality and validity of order dated 08.11.2005 ( Annexure 9 to the writ petition) passed by the Settlement Officer, Cachar and Ha ilakandi districts, Silchar directing exclusion of names of petitioner and other s, whose interest the petitioner claims to represent, as non-local people in the said 2nd Class Fishery. As per Rule 14 of the Assam Fishery Rules, 1953, it is provided that fisheries c annot be settled as land. However, an exception is made in the case of Cachar di strict. In Cachar, small i.e. 2nd Class fisheries which adjoin settled land shal l be entered in a separate Registrar in the Deputy Commissioner’s Office and sha ll not be included in the ordinary Jamabandis. The lease for such fisheries is i n a special form sanctioned at the time of resettlement. Rights of the lessees e xtend to fishing only; they cannot acquire the status of land holder. Rule 15 deals with fishing rights in Cachar. It provides that fishing rights sha ll be valued by the Settlement Officer and the Mahal shall be settled to the bes t advantage with any candidate who will undertake to collect the rates, which sh all be recorded and shall be a condition of settlement. Another condition is tha t such candidate should allow continuance of right of fishing to all who had hit herto enjoyed it, but shall not permit its extension to outsiders. On 23.09.2005, the Settlement Officer had informed the Assistant Settlement Offi cer, Katigorah Circle as under:- (cid:28) In inviting reference to your letter under reference it appears from your repo rt that the name of Ala Uddin and 51 others have been included in the 2nd Class Fishery No. 3 locally known as Patinga, Fishery No. 18 locally known as Vewa and Fishery No. 4 Locally known as Tiya Beel of Mouza-Baroitoli Pt.II, Ph.-Kalain i n the light of order passed by the then Settlement Officer, Cachar & Hailakandi Districts, Silchar in Misc. Fishery Case No. 2/2001 dtd. 30.01.2002. Afterwards the petitioner Numan Uddin & others alleging to Director of Land Records etc, As sam for cancelling the names of new entrants. The Director of Land Records etc., Assam passed an order on 24.09.2003 vide Letter No. DLR/Misc.1/2002/11 in which requested the undersigned to re-examine the antecedents of the new entrants and without obtaining the consent of the existing Fisherman no new settlers be allo wed any right to fish in the said fisheries. Hench you are requested to cancel the name of Ala Uddin and 51 others those who included afresh in pursuance of Director of Land Records etc., Assam’s order as stated above. (cid:29) However, on a petition filed by Md. Ala Uddin and others seeking review of the a foresaid order dated 23.09.2005, names of earlier petitioners were cancelled on the ground that they were not local people. Order dated 08.11.2005 reads as under:- (cid:28)Seen the petition dtd. 21.10.2005 filed by Ala Uddin S/o Late Bosarat Ali and o thers praying for review the order of 2nd Class Fishery viz-Vewa, Tiya and Patin ga passed and issued vide this office No. CSO.95/2005/3355 dtd. 23.09.2005. In this connection all relevant record have been examined and thereby it has com e to the light that the present petitioners have been enjoyed the above mentione d 2nd Class Fisheries right from 2001 till now paying necessary Govt. Revenue. Earlier to 2001 the 2nd Class Fisheries enjoyed by Late Masaddar Ali and after h is death his kith and kiln are far away from these fisheries without enjoying an d claiming to get these fisheries in the right of inheritance. On the other hand the present petitioners are local people residing nearby these 2nd class fisher ies and these people are fisherman and therefore, in exercise my power conferred upon me by Rule 14, I am satisfied with the present petitioners and cancelling the earlier order of this office No. CSO.95/2005/3355 dtd. 23.09.2005. Since earlier petitioners are not at all local people and having no names in the Voter Roll of G.P. Lakhipur (No.158) and P.S. No. 65 (No. 5 Baraitali) of villa ge Baraitali Pt.II therefore, their names are cancelled from the 2nd Class fishe ry viz.-Vewa, Tiya & Patinga of Baraitali Pt. II. (cid:29) Learned counsel for the petitioner submits that the aforesaid impugned order dat ed 08.11.2005 was passed in contravention of Rules 14 and 15 of Assam Fishery R ules, 1953 and, therefore, cannot be sustained. He further submits that no such power of review is vested on the Settlement Officer to review his own order. Whi le passing the impugned order, the Settlement Officer had acted in quasi-judicia l capacity determining limited fishing rights of the parties. Therefore, the imp ugned order is without jurisdiction, he submits. Ms. B. Dutta, learned State Counsel refers to the affidavit filed by respondent No. 3 and questions the locus standi of the petitioner to institute the present proceeding in a representative capacity. This Court by order dated 27.01.2006 while issuing notice, had stayed operation of the impugned order dated 08.11.2005. Subsequently, rule was issued admitting the writ petition. Writ petition having being admitted, it will neither be fair nor just to reject the writ petition on the ground that the present proceeding cannot be maintained by the petitioner in representative capacity. Respondents have also not dispute d that petitioner resides in the locality of the aforesaid 2nd Class Fishery. Th erefore, petitioner is competent to maintain the challenge atleast in his indivi dual capacity, if not in representative capacity. Coming to the impugned order dated 08.11.2005, a bare perusal of the same would show that no notice or opportunity of hearing was given to those persons whose n ames were cancelled from the 2nd Class Fishery. Impugned order is, therefore, in violation of the principles of natural justice and such violation has vitiated the impugned order. In view of above, the other grounds urged by the learned counsel for the petitio ner are not required to be gone into. Accordingly, the impugned order is hereby set aside and quashed. It will be open to the Settlement Officer to pass a fresh order in accordance wi th law after giving reasonable opportunity of hearing to all the affected partie s. Writ petition is allowed to the extent indicated above. No cost.