Due process in cancellation of lease, Interpretation of Fishery Rules

I.A. Ansari, J.

1. I have heard Mr. N.C. Das, learned Senior counsel, appearing on behalf of the petitioner in WP(C) No. 4799/2007, and Ms. B.L. Sinha, learned Government Advocate, appearing on behalf of the State respondents, in WP(C) No. 4799/2007, WP(C) No. 5835/2006, WP(C) No. 5680/2007 and WP(C) No. 7203/2005. I have also heard Mr. I. Choudhury, learned Counsel, appearing on behalf of the private respondent, i.e. respondent No. 4, in WP(C) No. 4799/2007, who is appearing on behalf of the petitioners in WP(C) No. 5835/2006, WP(C) No. 5680/2007 and WP(C) No. 7203/2005.

2. By this common judgment and order, I propose to dispose of all the four writ petitions, namely, WP(C) No. 4799/2007, WP(C) No. 5835/2006, WP(C) No. 5680/2007 and WP(C) No. 7203/2005, for, all these writ petitions are closely inter-linked and have, therefore, been, as sought for by the learned Counsel for the parties, heard together.

3. Before entering into the discussion of the facts involved in these four writ petitions, it is required to be borne in mind that the controversy, arising out of the subject-matter of these writ petitions, demands determination of the scope and ambit of Rule 8 read with Rule 12 of the Assam Fishery Rules, 1953.

4. Before the Assam Fishery (Amendment) Rules, 2005, came into force with effect from 08.04.2005, Rule 8 and Rulel2 of the Assam Fishery Rules, 1953, read as under:

Rule-8. Settling Authority. - (a) The Deputy Commissioners or the Additional Deputy Commissioners in case of Sadar Sub-Divisions and the Sub-Divisional Officers in case of other Sub-Divisions shall be the authorities for settlement of all registered fisheries under the tender system of sale in their respective jurisdiction.

Rule-12. Except those referred to in Sub-rule No. 8(b) above, all registered Fisheries shall be settled under tender system of sale in place of sale by auction:

Provided that the State Government may settle any registered fishery otherwise than under tender system with Fishery Co-operative Society formed with 100 per cent actual fishermen 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 at a revenue calculated and for a period decided by the State Government from time to time.

5. A combined reading of Rule 8 and Rule 12, as these two rules had existed before 08.04.2005, shows that in respect of a registered fishery, located within a Sadar Sub-Division, it was the Deputy Commissioner or the Additional Deputy Commissioner of the District, who was the competent authority to grant lease and, in respect of those registered fisheries, which fell in Sub-Divisions other than Sadar Sub-Divisions, it was the Sub-Divisional Officer of the Sub-Division concerned, who was the authority to grant lease. Moreover, what the unamended Rule 12 laid down was that all registered fisheries should be settled under tender system of sale and not by way of auction or otherwise. The proviso to Rule 12, however, empowered the State Government to settle any registered fishery otherwise than under tender system with Fishery Co-operative Society formed with 100 percent actual fishermen 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 at a revenue calculated and for a period decided by the State Government from time to time.

6. By the Assam Fishery (Amended) Rules, 2005, the proviso to Rule 12 stands amended with effect from 08.04.2005. With the amendments incorporated, the proviso to Rule 12, now, reads as under:

Provided that the Government shall settle a 60% category fishery with special category of co-operative Societies, Non-governmental Organisations and Self Help Groups consisting of 100% actual fishermen in the neighbourhood of the fishery concerned by the Tender System.

Explanation 1: For the purpose of this rule, the words 'special cat