Judgment · High Court · 2009

In the fray are three Fishery Co-operative Societies. All claim to be en titled to the settlement of registered fisheries contemplated under Rule 12 of the Assam Fishery Rules,1953(hereafter for short referred to as the ’Rules’). Th ough there is a background of litigations involving the process with regard to s uch entitlement of the Respondent No.5, the same being not an issue seeking adju dication in the instant proceeding, no dilation thereon is essential. No argumen t has also been advanced on behalf of the petitioner and the Respondent No.6 in this proceeding bearing on the status of the respondent No.5 and its eligibility under the Rules for settlement of fisheries contemplated thereby.

#2. In challenge herein is the order dated 1.3.2006 passed by the De puty Secretary to the Government of Assam, Fishery Department conveying the deci sion of the Governor of the State granting extension of the period of settlement of No.1 Darrang Brahmaputra Min Mahal of Darrang District (hereafter referred t o as ’Fishery’) in favour of the Respondent No.5. This fishery had been earlier settled with this respondent by order dated 17.12.1999 under Rule 12 of the Rul es for a period of 7 years with effect from 13.12.1999 on the terms and conditio ns as enumerated therein.

#3. I have heard Mr NC Das, Senior Advocate assisted by Ms B.Devi, A dvocate for the petitioner , Mr GN Sahewella, Senior Advocate assisted by Mr D.S enapati, Advocate for the Respondent No.6 and Mr M.Nath, Advocate for the Respo ndent No.5. The assailment of the petitioner against the impugned order of 4. extension in favour of the Respondent No.5 is that, the grounds in support there of are wholly irrelevant and not contemplated by Rule 8(b) of the Rules. Moreove r, the period thereof on the face of it is an index of favour bestowed on the said respondent and amounts to fresh settlement for all practical purposes. T hese being in the teeth of the underlying objectives of Rule 8(b) which is n ormally , to enable the lessee to make good the loss suffered, it is oppose d to the letter and spirit thereof and is thus liable to be interfered with. Th ough the Respondent No.6 has not filed its affidavit, it has joined the petition er in the impugnment ,it being one of the aspirants for settlement under Rule 1 2.

#5. The Respondent No.5 in its counter has set out in details the fa cts bearing on the loss suffered by it during the period of settlement contendi ng that the impugned order being based on a report in endorsement of the grounds cited by it, the same is valid in law and does not warrant any interference by this Court. To be specific, the reasons compelling it to pray for extension of the settlement has catalogued by it in paragraph 7 of its affidavit which are extracted hereinabelow :- (cid:28) That so far the prayer of the petitioner regarding setting aside and q uashing the order of extension dated 1.3.2006 is concerned, your deponent states that although the fishery in question was settled with the deponent society vid e order dated 17.12.1999, however they could not operate the fishery due to the following reasons :- (a) rge numbers of Bandhs called by various organizations, (b) During the period of 2005-2006, the deponent society had to face total 6 6 days Darrang & Assam Bandha. In this six years the deponent faced about 1 year Within 6 years 2 months of the settlement, the deponent Society faced la Bandh and had to face lss of approximately 1 year’s revenue , Due to fish epidemic, production of fish reduced, as a result of which t (c) he society had to face great difficult in paying the Government revenue, (d) For eviction of trespassers from the fishing area, the society had to in cur substantial loss, Due to the aforesaid reasons, the deponent society had to incur loss @ Rs.830/- per day. Hence, your deponent society submitted a petition to the Fishery Minist er, Assam on 5.2.2006 praying for extending the term of settlement of the fisher y to enable the poor members of the society to earn their livelihood and to pay the Government revenue. The said petition was submitted in view of the fact th at in the next ten months, i.e.; till the expiry of the settlement period of the fishery, your deponent society would not be able to recover the heavy loss incu rred by them while operating the said fishery. The said petition was submitted i n full compliance of the provisions of Rule 8(b) of the Assam Fishery Rules. (cid:29)

#6. The learned Senior counsel for the petitioner and the Respondent N o.6 have urged in unison that the impugned order of extension being opposed to the pith and purport of Rule 8(b) , it is liable to be interfered with. Abid ing by their pleaded stand, it has been argued that in the garb of extension, the Respondent No.5 has been favoured with a fresh period of settlement which i s impermissible under the Rules. Without prejudice to the above, they ,however, have pleaded that as the period of extension would end on 31.12.2009, if this C ourt is presently not inclined to interfere therewith , in the background of f acts, an appropriate direction ought to be issued to the Respondent authorities not to grant further extension to the Respondent No.5.

#7. Mr Nath, in his emphatic reply, has submitted that the order of extension having been granted on a consideration of the grounds assigned by it which the settlement authority had in its comprehension considered to be releva nt and adequate , no interference therewith is called for. Further, it beingthe discretion of the settlement authority under Rule 8(b) to take an appropriate decision on an application for extension, this Court in the exercise of its powe r of judicial review would not impose a restraint thereon on a hypothetical plea as advanced by the petitioner.

#8. The pleadings of the parties and the arguments advanced have rec eived the due consideration of this Court. There is no wrangle at the Bar that t he fishery is one which normally is to be settled by a tender system of sale in terms of Rule 12 of the Rules. Rule 8(b) evidently empowers the Governor to exte nd the period of settlement of registered fisheries if the same is interfered wi th by nature or for an unavoidable reason beyond the control of the lessee for a reasonable period so as to enable such lessee to make good the loss. The order of extension however, has to be preceded by an official report to demonstrate t hat the nature of the cause is exceptionally special.

#9. A plain reading of Rule 8(b) in the opinion of this Court demonstrat es self contained fetters on the exercise of discretion comprehended thereo n. The necessary prerequisites essential for the grant of extension thus essent ially conditions the power conferred. Indubitably therefore, such a discretion has to be exercised within the framework of control as is statutorily prescribed .

#10. The grounds cited by the petitioner in support of its prayer for extension are on the face of the records founded on facts. It is also a matter of record that the order of extension impugned in the instant proceeding had bee n passed on a consideration of the report of the Circle Officer, Mangaldai made on the basis of a spot survey of the fishery as well as the letter dated 16.2.20 06 of the Deputy Commissioner, Darrang, Mangaldai reiterating the disclosures in the said report.

#11. Though the impugned order of extension per se, does not record the satis faction that the period of extension is called for to enable the Respondent No. 5 to make its loss, in the facts and circumstances of the case, having regard t o the grounds taken into consideration , the same may be reasonably interfered. Be that as it may, having regard to the fact that the period of extension is go ing to end in near future , the outer limit being 31.12.2009, in the singular f acts and circumstances of the case, at this distant point, this Court is not i nclined to interfere therewith.

#12. Qua, the apprehension of the petitioner and the Respondent No.6 on the possibility of further extension of the period of settlement in favour of the Respondent No.5, sufficient it would be to mention that the fishery is in the form of State largesse and it is expected that unless there is some overw helming and exceptional fact situation contemplated by Rule 8(b), any prayer fo r extension ought not to be entertained. It is noticeable that meanwhile the R espondent No.5 has been operating the fishery for nearly a decade now and the es sence of the principle of awarding state largesse being distributive in na ture, the State respondents would bear the above factor in mind if at all they a re called upon to exercise the power for further extension of the period of sett lement of the Respondent No.5.

#13. The petition therefore, stands disposed with the above observat ions. No costs.