1980 Supreme(Gau) 30

GAUHATI HIGH COURT
D. PATHAK, Ag. C.J., K. LAHIRI AND N. IBOTOMBI SINGH, JJ.
Arabinda Das and etc -Appellant
Versus
State of Assam and others -Respondent
Civil Rules Nos. 174 and 175 of 1980
Decided On : 21-08-1980

The State Government has the unfettered power to settle the fisheries directly under the proviso to Rule 12 of the Assam Fishery Rules, 1953, before the final settlement by tender and also the power of extension under clause 9(b) of Rule 8.

Headnote:

FISHERY - SETTLEMENT - DIRECT SETTLEMENT BY STATE GOVERNMENT - POWER OF - PROVISO TO RULE 12 OF ASSAM FISHERY RULES, 1953 - SCOPE AND CONTENT - EXTENT OF - CIRCUMSTANCES IN WHICH POWER CAN BE EXERCISED - WHETHER POWER CAN BE EXERCISED AFTER INVITING TENDERS - WHETHER POWER CAN BE EXERCISED ARBITRARILY - WHETHER POWER CAN BE EXERCISED TO NULLIFY MAIN PROVISION OF RULE 12 - WHETHER POWER CAN BE EXERCISED TO CIRCUMSCRIBE ORDER OF ASSAM BOARD OF REVENUE - WHETHER POWER CAN BE EXERCISED TO SETTLE FISHERY WITH FISHERY CO-OPERATIVE SOCIETY FORMED WITH 100% ACTUAL FISHERMEN OF FISHING POPULATION - WHETHER POWER CAN BE EXERCISED TO SETTLE FISHERY WITH FISHERY CO-OPERATIVE SOCIETY FORMED WITH 100% ACTUAL FISHERMEN OF FISHING POPULATION BELONGING TO SCHEDULED CASTES OF STATE OR MAIMAL COMMUNITY OF CACHAR DISTRICT - WHETHER POWER CAN BE EXERCISED TO SETTLE FISHERY AT REVENUE CALCULATED AND FOR PERIOD DECIDED BY STATE GOVERNMENT FROM TIME TO TIME - WHETHER POWER CAN BE EXERCISED TO EXTEND PERIOD OF LEASE - RULE 8(B) OF ASSAM FISHERY RULES, 1953 - SCOPE AND CONTENT - EXTENT OF - CIRCUMSTANCES IN WHICH POWER CAN BE EXERCISED - WHETHER POWER CAN BE EXERCISED ARBITRARILY - WHETHER POWER CAN BE EXERCISED TO NULLIFY MAIN PROVISION OF RULE 8 - WHETHER POWER CAN BE EXERCISED TO CIRCUMSCRIBE ORDER OF ASSAM BOARD OF REVENUE - WHETHER POWER CAN BE EXERCISED TO EXTEND PERIOD OF LEASE OF FISHERY WITH SITTING LESSEE - WHETHER POWER CAN BE EXERCISED TO EXTEND PERIOD OF LEASE OF FISHERY WITH SITTING LESSEE WHO AGREES TO ACCEPT SUCH EXTENSION AT REVENUE AND FOR SUCH OTHER ADDITIONAL TERMS AND CONDITIONS AS MAY BE SPECIFIED BY GOVERNMENT - WHETHER POWER CAN BE EXERCISED TO EXTEND PERIOD OF LEASE OF FISHERY WITH SITTING LESSEE WHO AGREES TO ACCEPT SUCH EXTENSION SUBJECT TO IMPLEMENTATION OF APPROVED SCHEME OR SCHEMES OF DEVELOPMENT, AND IMPROVEMENT OF SUCH A FISHERY AT LESSEES OWN COST WITHIN A TARGET PERIOD TO BE FIXED BY GOVERNMENT.

Fact of the Case:

The petitioners, members of the Scheduled Caste and belonging to Kaivarta family selling fish in the market and dealing in fishery business, submitted valid tenders for settlement of fisheries in response to a notice issued by the Deputy Commissioner inviting tenders. Subsequently, the petitioners came to learn that the Government of Assam had issued a W/T message directing all Deputy Commissioners and Sub-Divisional Officers not to open tenders and to make settlement of the fishery without prior clearance from the Government. The petitioners challenged the W/T message as it directed the authorities not to open the tenders submitted by different tenderers for settlement of the fishery as notified by the sale notice dated 12-2-1980 and to make settlement of such fisheries on the basis of such tenders without prior clearance from the Government.

Finding of the Court:

1. The State Government has the unfettered power to settle the fisheries directly under the proviso to Rule 12 of the Assam Fishery Rules, 1953, before the final settlement by tender and also the power of extension under clause 9(b) of Rule 8. 2. The impugned order, which stayed the settlement of the fishery by tender as the Government had received certain applications for direct settlement or for extension of the lease of the fisheries, was only of the nature and character of giving effect to the proviso to Rule 12 and clause (b) of Rule 8 for the State Government's exercise of undoubted power. 3. The impugned order did not in any way violate the provisions of the Rules, rather it became sometimes absolutely necessary for giving time to the State for consideration as to whether power under the proviso to Rule 12 or Rule 8(b) is to be exercised in a given state of facts and circumstances.

Issues: 1. Whether the State Government has the power to settle fisheries directly under the proviso to Rule 12 of the Assam Fishery Rules, 1953, before the final settlement by tender? 2. Whether the State Government has the power of extension under clause 9(b) of Rule 8 of the Assam Fishery Rules, 1953? 3. Whether the impugned order, which stayed the settlement of the fishery by tender as the Government had received certain applications for direct settlement or for extension of the lease of the fisheries, was valid?

Ratio Decidendi: 1. The proviso to Rule 12 of the Assam Fishery Rules, 1953, specifically empowers the State Government to settle the fishery rights otherwise than by sale and there is no conflict between the provisions of Section 16 of the Assam Land and Revenue Regulation, 1886, and Rule 12 of the Fishery Rules. 2. Rule 8(b) of the Assam Fishery Rules, 1953, empowers the State Government to 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. 3. The impugned order was only of the nature and character of giving effect to the proviso to Rule 12 and clause (b) of Rule 8 for the State Government's exercise of undoubted power and did not in any way violate the provisions of the Rules.

Final Decision: The petitions were dismissed.