High Court
Case Details
WP(C) 3904/2013 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV) Challenge made by the petitioner in this writ petition is to the legali ty and validity of the order dated 11.7.2013 passed by the Secretary to the Go vernment of Assam, Fishery Department settling No.2 Sootia Brahmaputra Fishery ( 60% category) of Darrang district with respondent No.3 for a period of 7 years a nd further seeks a direction to the respondents to settle the said fishery with the petitioner. 2. Case of the petitioner is that it is a registered fishery cooperative so ciety comprising of 100% actual fishermen belonging to maimal fishermen commun ity in the district of Darrang, Assam. All the members of the petitioner belong to erstwhile Cachar district and now settled in Darrang district. Deputy Commis sioner, Darrang issued Notice Inviting Tender( NIT) dated 24.5.2013 inviting sea led tenders for settlement of No.2 Sootia Brahmaputra fishery (Fishery) for 7 ye ars. Amongst the various terms and conditions specified in the NIT, it was state d that tenders can only be submitted by fishery cooperative societies constitut ed by 100% scheduled caste people or by actual fishermen belonging to maimal c ommunity of Barak valley or by NGOs, Self Help Groups and individual fish erman belonging to scheduled caste community. The tenderers must hail from the concerned district and from near the fishery. 3. Petitioner responded to the said NIT and submitted tender offering bid v alue of Rs.1,82,62,805.00. When the tenders were opened, it was found that 5 ten derers had submitted tenders, including the petitioner and respondent No.3. Aga inst the above bid value of the petitioner, bid value offered by respondent No. 3 was the 2nd highest at Rs.1,09,08,000.00. 4. By the impugned order dated 11.7.2013 issued by the Secretary to the Gove rnment of Assam, Fishery Department, the fishery has been settled with responden t No.3 at its offered bid value of Rs.1,09,08,000.00 for a period of 7 years. Th ough the bid value of the petitioner was the highest, it was rejected on the gro und that enquiry report submitted by the Deputy Commissioner indicated that mem bers of the petitioner belong to maimal community of Darrang district. It was a lso indicated that petitioner did not fulfill the requirement of Section 6 of th e Indian Fisheries Act, 1897. On the other hand, the tender of the respondent No .3 was found to be valid in all respects and was accordingly accepted. 1. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above. 2.
Facts
Contention of the petitioner is that all its members belong to maimal community of erstwhile Cachar district and now settled in Darrang district. Thi s aspect of the matter was gone into in the earlier round of litigations and ha s been settled. Therefore, it is not open to any of the parties to now contend that members of the petitioner though belonging to the maimal community are not originally from Cachar district. The other ground of rejection, namely, non-ful fillment of requirement of Section 6 of the Indian Fisheries Act, 1897 does not stand to reason as the said section enables the State Government to make rules for the purposes mentioned therein, such as, erection and use of fixed engines ; construction of weirs; dimension and kind of nets to be used and also for proh ibiting of fishing activities in specified water for a period not exceeding tw o years. Therefore, rejection of the tender of the petitioner on the above two grounds is illegal, unreasonable and wholly untenable and being the highest bi dder, settlement should have been made with the petitioner. 3. This Court by order dated 16.7.2013 while directing learned State Coun sel to obtain instruction in respect of above two grounds, ordered that respon dent No.3 should not be given possession of the fishery. It was further made cl ear that the petitioner should also not carry out fishing operation in the fish ery. 4. A number of affidavits have been filed by the parties. 5. Respondent No.4 has filed affidavit through Additional Deputy Commission er. It is stated that as per NIT, 5 tenderers had submitted their tenders. Peti tioner was also one of the tenderers and had submitted caste certificate of mai mal community of Darrang district. It is stated that as per Rule 12 of the Assam Fishery Rules, 1953, as amended, a 60% category fishery shall be settled by the Government with special category of cooperative societies, NGOs and Self Help Groups consisting of 100% actual fishermen in the neighbourhood of the fishery concerned. Special category has been explained to mean and include cooperative s ocieties, Self Help Groups, NGOs comprising of 100% actual fishermen of the sc heduled caste community or maimal community of erstwhile Cachar district. Office of the Deputy Commissioner submitted proposal to the Government on 19.6.2013 fo r settlement of the fishery stating the above facts. After due examination, Gov ernment issued the impugned settlement order. 6. Respondent No.3 has filed counter affidavit. It is stated that the impu gned order was passed after holding enquiry and scrutiny of record. Ample opport unity of hearing was given to the petitioner to place all documents to justify i ts claim but petitioner failed to do so to the satisfaction of the authorities c oncerned. There is no evidence to show that the members of the petitioner belon ged to or had any link with people of maimal community of erstwhile Cachar distr ict. Petitioner is already a sitting lessee in respect of No.1 Darrang Brahmapu tra fishery. A cabinet decision was taken on 14.6.1982 to the effect that one pa rticular society should not be given settlement of more than one fishery at a ti me. Thus, petitioner cannot claim settlement of the present fishery. There is no infirmity in the settlement order dated 11.7.2013.
Legal Reasoning
7. Petitioner has filed reply affidavit to the affidavit filed by responde nt No.3. Petitioner has referred to the observations of this Court in the judgm ent and order dated 9.8.1996 passed in Civil Rule Nos.2093/1995 and 2165/1995 w hich declared the members of the petitioner as belonging to maimal community of erstwhile Cachar district now settled in Darrang district. Though the decision o f the Single Bench was interfered with by the Division Bench, when the matter wa s carried to the Hon’ble Supreme Court, the decision of the Single Bench was up held. In view thereof, the issue relating to the status of the members of the p etitioner as belonging to maimal community of erstwhile Cachar district now res iding in Darrang district has attained finality. Fishery Department, Government of Assam had issued letter dated 16.6.2006 directing that the allegation regar ding caste status of the members of the petitioner should not be entertained in future. In a recent order dated 17.6.2013 passed in WP( C) No.1454/2013, thi s Court had interfered with the settlement of a fishery which was made without c onsidering the tender of the highest bidder who belonged to maimal community res iding in Darrang district. Petitioner has also contended that there is no legal bar or impediment for an eligible society to get settlement of more than one fi shery at a time. 8. Respondent No.3 in his additional affidavit filed on 23.9.2013 has con tended that petitioner has mis-interpreted the judgment of the Hon’ble Supreme C ourt. Petitioner has not been able to show any proof or evidence in support of its claim that its members belonged to maimal community of erstwhile Cachar di strict. Enquiry report of Project Director, DRDA, Darrang dated 19.12.2009 onl y reinforces the above position. 9. A further affidavit has been filed by respondent No.3 on 30.9.2013. Alo ngwith the said affidavit, respondent No.3 has enclosed certain documents to co ntend that claim of the petitioner that its members belong to maimal community of erstwhile Cachar district is false. In this regard, respondent No.3 has state d that it has filed appeal before the Cooperation Department, Government of Assa m for de-registration of the petitioner. 10. Heard Mr.S.S.Dey, learned counsel for the petitioner and Mr. B.J.Ghosh, learned Government Advocate, Assam, who has produced the record. Also heard Mr. S.Huda, learned counsel for respondent No.3. 11. Mr.Dey, learned counsel for the petitioner, submits that impugned order of settlement is wholly unsustainable in law in as much as the grounds on whi ch the tender of the petitioner was rejected despite being the highest bidder are wholly non-existent. Tender of the petitioner was valid in all respects and being the highest bidder, was eligible for settlement. Tender of the petit ioner has been rejected on the ground that its members belong to maimal communi ty of Darrang district and not from Barak valley as is the requirement in the NIT. This issue was gone into in the earlier round of litigations and it was set tled that members of the petitioner belonged to the maimal community of erstwhi le Cachar district and now settled in Darrang district. This issue has attained finality and cannot be reopened to deny settlement to the petitioner. The second ground of rejection, namely, non-fulfillment of the requirement of Section 6 o f the Indian Fisheries Act, 1897 does not stand to reason at all as the said pro vision is not attracted at all to a settlement made under the Assam Fishery Rul es, 1953. In any case, it is a rule making power enabling the State Government to make rules for the purposes mentioned therein. In view thereof, impugned ord er of settlement should be set aside and the respondents be directed to make s ettlement of the fishery with the petitioner at its highest bid. 12. Learned State Counsel while producing the record, submits that the ques tion as to whether members of the petitioner belong to the maimal community of e rstwhile Cachar district and now settled in Darrang district is a question of f act and would require factual determination, which may not be gone into in a pro ceeding under Article 226 of the Constitution of India. He submits that the prim ary authority had reached a finding of fact that the members of the petitioner belong to Darrang district and there is no proof or evidence to show that t hey have any link with maimal community of erstwhile Cachar district. 13. Mr.S.Huda, learned counsel appearing for respondent No.3 also makes sub missions on similar lines. He has asserted that members of the petitioner do not belong to maimal community of erstwhile Cachar district and they have been enjoying various benefits on the basis of false claim that they belong to maim al community of erstwhile Cachar district. He submits that respondent No.3 has taken necessary steps for cancelling registration of the petitioner. He also su bmits that there is no infirmity in the order of settlement and no interference is called for. Respondent No.3 has made necessary arrangement for starting fi shing operation and have put in substantial investment. Therefore, interim or der passed by this Court may be vacated. 14. . Submissions made have been considered. Also perused the record produced 15. As has been argued by the petitioner and as is discernible from the se ttlement order, though the bid of the petitioner was the highest, it was reje cted on two grounds. As per first ground, members of the petitioner belong to ma imal community of Darrang district whereas the requirement under the Rules as we ll as under the NIT is that the members of the cooperative societies, NGOs and S elf Help Groups should belong to the maimal community of Cachar district. The second ground is non-fulfillment of requirement of Section 6 of the Indian Fis heries Act, 1897. 16. e Indian Fisheries Act, 1897 reads as under :- The second ground of rejection may be taken up first. Section 6 of th (cid:28) 6. Protection of fish in selected waters by rules of State Government.-(1) The State Government may make rules for the purposes hereinafter in this section me ntioned, and may by notification in the Official Gazette, apply all or any of su ch rules to such waters, not being private waters, as the State Government may s pecify in the said notification. (2) The State Government may also, by like notification, apply such rules or an y of them to any private water with the consent in writing of the owner thereof and of all persons having for the time being any exclusive right of fishery ther ein. (3) Such rules may prohibit or regulate all or any of the following matters, tha t is to say- (a) the erection and use of fixed engines; (b) the construction of weirs ; and (c ) the dimension and kind of the nets to be used and the modes of usi ng them. (4) Such rules may also prohibit all fishing in any specified waters for a peri od not exceeding two years. (5) In making any rule under this section the State Government may - (a) direct that a breach of it shall be punishable with fine which may extend to one hundred rupees, and, when the breach is a continuing breach, with a further fine which may extend to ten rupees for very day after the date of the first co nviction during which the breach is provided to have been persisted in ; and (b) provide for- (i) the seizure, forfeiture and removal of fixed engines, erected or used, or ne ts used in contravention of the rule, and (ii) the forfeiture of any fish taken by means of any such fixed engine or net. (6) The power to make rules under this section is subject to the condition that they shall be made after previous publication. (cid:29) 17. A perusal of the aforesaid Section would clearly indicate that the same is not at all applicable in respect of settlement of a fishery under the Assa m Fishery Rules, 1953. On the contrary, the said section enables the State Gover nment to make rules for the purposes mentioned therein. As such, rejection of t he tender of the petitioner on the aforesaid ground does not stand to reason. P etitioner’s tender, therefore, could not have been rejected on the ground of no n-fulfillment of the requirement of Section 6 of the aforesaid Act. 18. This leads us to the first ground of rejection i.e. members of the petit ioner being maimal community of Darrang district and not maimal community of ers twhile Cachar district. It is the case of the petitioner that this issue was settled long back and is no longer open as the same had attained finality follow ing judicial pronouncements. It is now settled that members of the petitioner b elong to maimal community of erstwhile Cachar district now settled in Darrang di strict. 19. To test the above contention of the petitioner, let us revert to the c onditions in the NIT and the requirement of Rule 12 of the Assam Fishery Rules, 1953. 20. The NIT for settlement of the fishery was issued in terms of Rule 12 of the Assam Fishery Rules. Rule 12 of the Assam Fishery Rules has been amende d with effect from 8.4.2005. As per the amended provision of Rule 12 , all regis tered fisheries are required to be settled under tender system. Proviso to Rul e 12 mandates that the Government shall settle a 60% category fishery with spe cial category of cooperative societies, NGOs and Self Help Groups consisting of 100% actual fishermen in the neighbourhood to the fishery concerned by tender system. 60% fishery has been explained to mean 60% registered fisheries avail able in a Civil Sub-Division eligible for settlement in a particular year. Spe cial category has been explained to mean and include cooperative societies , Sel f Help Groups, NGOs comprising of 100% actual fishermen of the scheduled caste community or maimal community of erstwhile Cachar district. Thus, one of the req uirements to get settlement under Rule 12 of the Fishery Rules is the special ca tegory of cooperative societies, Self Help Groups and NGOs should comprise of 1 00% actual fishermen of the scheduled caste community of maimal community or of erstwhile Cachar district. 21. The question which therefore arises for consideration is as to whether members comprising the petitioner belong to maimal community of erstwhile Cach ar district. In the judgment and order dated 9.8.1996 in Civil Rule Nos. 2093 and 21 22. 61 of 1995, the question for consideration was legality and validity of settlem ent of No.1 Darrang Brahmaputra Fishery with the present petitioner. One of th e grounds of challenge was that members of the petitioner did not belong to maim al community of erstwhile Cachar district. In paragraph 15 of the said judgment, it was stated that members of the petitioner belong to maimal community of Cac har district and now they are permanently residing in Darrang district. Therefo re, learned Single Judge observed that they cannot be deprived of getting the benefit of the proviso to Rule 12. However, learned Single Judge set aside the s ettlement made in favour of the present petitioner on the issue of (cid:28) neighbourh ood (cid:29) and remanded the matter to the State Government for fresh settlement after considering the following aspects:- (cid:28) (i) Whether the claimant- fishery cooperative society is formed with 100% a ctual fishermen of fishing population belonging to the Scheduled Caste Community of the State or Maimal Community of Cachar District ; (ii) Whether the members of the said Society live in the (cid:28)neighbourhood (cid:29) of the Fishery in question; and (iii) Whether the said Society fulfills the other terms and conditions necessary for giving settlement. (cid:29) The matter was taken to the Apex Court and the Hon’ble Apex Court in the case of M/s. Baghpori M.M. Samabai Samiti Ltd. -vs- State of Assam & Ors. reported in 1999(2) GLT (SC) 7 upheld the view of the learned Single Judge. 23. As noticed above, in paragraph 15 of the judgment, learned Single Judge had recorded that the members of the present petitioner belong to maimal commu nity of Cachar district and now they are permanently residing in Darrang distri ct. But in the concluding portion of the judgment at paragraph 18, while reman ding the matter to the Government for fresh decision, it was directed that amon gst other things, the Government should also consider as to whether the claiman t fishery cooperative society is formed with 100% actual fishermen of fishing co mmunity belonging to the scheduled castes of the State or maimal community of C achar district. Viewed in the above context, the finding of the learned Single J udge in paragraph 15 would appear to be in the form of an observation only . Doc uments placed on record, including enquiry reports, suggest that though the me mbers of the petitioner are fishermen of char areas, nobody could produce any do cument to prove that they hailed originally from Cachar district and belong to maimal community of Cachar. In the enquiry report of Additional Deputy Commissi oner, Darrang dated 16.1.1998, it was stated that muslim community people living in Baghpori char are only fishermen by profession and they do not belong to mai mal community of Cachar district. In the enquiry report submitted by the Projec t Director, DRDA, Darrang dated 19.12.2009 on the issue as to whether muslim in habitants dwelling in the char areas of Baghpori in whose favour OBC certificat es were issued belong to maimal community or not, it is stated that though the muslim people of Baghpori chapori are fishermen by profession, they could not p roduce any evidence that they belonged to maimal community of erstwhile Cacha r district. Though the petitioner has placed reliance on a letter dated 16.6. 2006 of the Deputy Secretary to the Government of Assam, Fishery Department ad dressed to the Deputy Commissioner of Darrang to the effect that the allegation regarding status of the members of the petitioner as belonging to maimal communi ty should not be entertained in future, I am of the view that between 2006 and 2013, a long period has elapsed. During this intervening period of 7 years, memb ership list of the petitioner must have also undergone change with deletion of o ld members and addition of new members. Moreover, on a careful reading of the previous Court orders, I do not find that there is any authoritative pronouncem ent that all members of the petitioner belong to maimal community of erstwhile C achar district. This is a matter which would require detailed verification and a factual determination. The writ Court in a proceeding under Article 226 of t he Constitution of India would not like to enter into an examination of the afor esaid issue having factual dimension. Furthermore, as has been pointed out by respondent No.3, petitioner i 24. s already enjoying fishing rights in one fishery, which is a relevant factor to be taken into consideration while extending state largesse. 25. For the aforesaid reasons and taking an overall view of the matter, thi s Court finds no good reason to interfere with the impugned order of settlement dated 11.7.2013. Writ petition is accordingly dismissed but without any order as to cost. Stay order passed earlier stands vacated.