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IN THE HIGH COURT OF GAUHATI
T. Nandakumar Singh, J.
Dibrugarh Fishery Co-Operative Society Ltd. - Appellants
Vs.
State of Assam and Ors. - Respondent
Decided On: 22.07.2008
FISHERY - EXTENSION OF LEASE - RULE 8, RULE 12 - The court discussed the application of Rule 8 and Rule 12 of the Assam Fishery Rules, 1953, which govern the settlement and extension of lease for fisheries. The key legal provisions were Rule 8(b)(1) allowing extension of lease in exceptional cases to make good the loss and Rule 12 mandating settlement under tender system, with exceptions for special category societies. The court examined whether the extension order was passed in good faith and with the best of intentions, and whether it amounted to unfair treatment to other societies.
Fact of the Case:
The petitioner, a fishery cooperative society, challenged the extension of the settlement period of a fishery in favor of another society. The petitioner alleged that the extension was sought due to political connections and that the society had not suffered any loss. The authority issued the extension order based on a vague report without considering the loss suffered by the society.
Finding of the Court:
The court found that the extension order was issued without considering the loss suffered by the society and amounted to unfair treatment to other eligible societies. The court held that the extension did not qualify as an exceptional case under Rule 8(b)(1) and quashed the extension order.
Issues: The core issues were whether the extension order was passed in good faith, whether the society suffered a loss, and whether the extension amounted to unfair treatment to other societies.
Ratio Decidendi: The court emphasized that the extension of lease can only be granted in exceptional cases for reasonable cause, and the decision must be based on relevant considerations. The court also highlighted the need for fair treatment to all eligible societies and the importance of adhering to the statutory provisions.
Final Decision: The court quashed and set aside the impugned extension order, finding that it was issued without considering the loss suffered by the society and amounted to unfair treatment to other eligible societies.
T. Nandakumar Singh, J.
1. The petitioner is a society, registered in the name and style of 'Dibrugarh Fishery Co-Operative Society Ltd., Dibrugarh' ('the petitioner society') and formed by 100% actual fishermen belonging to the Scheduled Caste community and fishing is their only means of livelihood. The petitioner, by this writ petition, is assailing order of the Government of Assam being No. FISH 237/86/pt-II/250 dated Dispur, the 31st March, 2008 for extending the settlement period of the Brahmaputra Part-Ill, IV and V Fishery for three years in favour of the sitting lessee, i.e., M/s. Brahmaputra Part-Ill, TV and V Fishery Co-operative Society Ltd. (the respondent No. 5 society) with an enhanced rate of 10% over the annual revenue w.e.f. 1.4.2008 to 31.3.2011.
2. Heard Mr. A.K. Goswami, learned senior counsel for the petitioner, the learned G.A., Assam appearing on behalf of respondent Nos. 1 to 4 as well, as Mr. N.C. Das, learned senior counsel appearing for respondent No. 5.
3. A short factual panorama, leading to the filing of the present writ petition, which would be sufficient for deciding the matter in issue in the present writ petition, is that: the respondent No. 5, i.e., M/s. Brahmaputra Part-Ill, IV and V Fishery Co-operative Society is also a registered society. The said fishery, i.e., Brahmaputra Part-III, IV and V ('the fishery'), Dibrugarh District was settled with the respondent No. 5/society in the year, 1976 which was cancelled in the year 1978. Immediately after cancellation, the fishery was again settled with respondent No. 5 society for a period from 1978 to 31.3.1984 at the rate of Rs. 1,04,500. The fishery was again settled with the respondent No. 5 society at the rate of Rs. 92,640 w.e.f. April 1984 and since then the respondent No. 5 society has been the lessee of the fishery till date, i.e., for a period of 24 years, either through fresh settlement and/or extension. The fishery was again settled with the respondent No. 5 society vide order dated 8.11.2000, issued in exercise of power conferred under proviso to Rule 12 of the Assam Fishery Rules, 1953 for a period from 1.4.2001 to 31.3.2008. As the settlement period of the fishery to the respondent No. 5 society was coming to an end, the petitioner society and tow other societies namely, M/s. Dehing Part-I Fishery Co-operative society Ltd. and Morichagaon Fishery Co-operative Society Ltd. had separately applied for direct settlement of the fishery.
4. Rules 8 and 12 of the Assam Fishery Rules, 1953 are relevant for deciding the matter in issue in the present writ petition. Accordingly, for easy reference Rules 8 and 12 of the Assam Fishery Rules, 1953 are quoted hereunder:
8. Settling authority - (a) The Deputy Commissioners or the Additional Deputy Commissioners in the 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 tender system of sale in their respective jurisdiction.
(b) Extension of the term of lease. - (i) Where...the period of lease of registered fisheries being ordinarily not less than three years is interfered with, due to any natural cause or for any unavoidable reasons beyond the control of the lessees, Government may extend the period of such 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;
(ii) The State Government may also on the recommendation of the Director of Fisheries extend the period of lease of a fishery with an intending pisciculturist who should invariably be the sitting lessee and who agrees to accept such an extension at a revenue and for such other additional terms and conditions as may be specified by Government:
Provided that one of the conditions or extension of lease against pisciculturel plan shall invariably be the implementation of approves Scheme or Schemes of Development and impro
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