In this writ application under Article 226 of the Constitution, the petitioner has challenged the Annexure II order dated 14th August, 1989 issued by the second respondent extending the term of lease of No. 43 Khamrangajan and Khamranga Beel Fishery in favour of fourth respondent for a period of three years with effect from 1.4,93 and prayed for issuance of appropriate writ for quashing the said order. ,,

2. The case of the petitioner society is that fourth respondent is a sitting lessee of the aforesaid fishery and has been enjoying the fishery for the last 18 years. The first settlement was made in 1974. According to the petitioner the last extended term of lease was to expire on 1.4.93 and on coming to know of this, petitioner decided to bid for the fishery. However, later on the petitioner came to know that second respondent extended the lease for further term of three years wef 1.4.93 in favour of fourth respondent. The extension order was passed before expiry of the term of previous extension in purported exercise of powers under proviso to Rule 8 (b) (ii) of the Rules for Settlement of Fisheries. According to the petitioner, this Rule does not envisage any extension during the period of settlement, therefore, the order was passed arbitrarily, illegally and in violation of Rules and also contrary to the object and spirit of the Rules. Hence the present petition.

3. I have heard Mr. NM Lahiri, learned counsel for the petitioner, Mr. SN Bhuyan, learned counsel for fourth respondent and also Mr. B Choudh­ury, learned Government Advocate for the State.

4. According to Mr. Lahid the extension order was passed in purported exercise of powers conferred by proviso to Rule 8 (b) (ii) of the Rules of Settlement for Fisheries without any valid reason. There was no reason why this order should have been passed. The impugned order Annexure II does not show how this power under proviso to Rule 8 (b) (ii) could be exercised during the period of settlement. According to him, the impugned order indicates that State Government exercised the power under proviso to Rule 8 (b) (ii) of the Rules for Settlement of Fisheries, but in the facts and circumstances of the case the said Rule is not applicable, inasmuch as, the extension was not in respect of pisciculture. The order was thus passed without application of mind. Therefore, extension given by Annexure II order cannot be sustained in law and liable to be set aside. Learned counsel further submitted that extension of term of lease under proviso to Rule

8 (b) (ii) can be made with a lessee who due to any natural cause or for any unavoidable reason beyond the control of the lessee suffers any loss, and fche Government may extend the period to -enable hint to make good the loss. However, such extension can he granted on the basis of official report as to the nature of loss, that too oah ia exceptional cases for a reasonable period. The impugned order doss not indicate anything.

5. Mr. SN Bhuyan, teamed counsel appearing on behalf of fourth respondent, however, submitted that extension was granted to the lessee as fie suffered heavy loss due to flood and for prohibitory order passed by the Government from selling of fish during the relevant period because of wide spread disease of fish. Therefore, lessee suffered loss in the year 1988-89 and in order to make good the loss the Government was fully justified is giving extension. There was no illegality or irregularity in giving extension, during the period of settlement as the Government can determine the Joss only at the time when the lessee suffers loss and Government need not waft till expiry of the term of settlement.

6. Mr. B. Choudhury, learned Government Advocate supported the impugned Annexure II order. He also candidly expressed that proviso to Rule 8 (b) (ii) is not applicable in the facts and circumstances of the case but, it is only misquoting of provision of law and that cannot invalidate the Annexure II order. In fact the Government exer

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