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1996 Supreme(Gau) 174
GAUHATI HIGH COURT
D.N.Baruah, J.
Mangaldai Pioneer Fishery Co-Operative Society; Sati Radhika Matshyajibi Samabay Samity Ltd. -Appellant
Versus
State of Assam -Respondent
Civil Rule No. 2093 and 2161 of 1995
Decided On : 09-08-1996
A.M.Majumdar, A.M.Bujar Barua, A.Hazarika, D.Das, D.N.Choudhary, B.D.Goswami , S.S.Dey, K.Barua, H.Nath, H.N.Sharma
The State Government can give direct settlement of a fishery to a fishery co-operative society only if the society is formed with 100% actual fishermen of the fishing population belonging to the Scheduled Castes of the State or Maimal community of the Cachar District and the members of the society reside in the 'neighbourhood' of the fishery.
Headnote:
{'KEYWORD': 'FISHERY SETTLEMENT', 'SUBJECT': 'Settlement of Fishery', 'ACT SECTION LIST': ['Rule 12 of the Fishery Rules'], 'SUMMARY': "The court interpreted the proviso to Rule 12 of the Fishery Rules, which allows the State Government to settle a fishery directly with a fishery co-operative society formed with 100% actual fishermen of the fishing population belonging to the Scheduled Castes of the State or Maimal community of the Cachar District. The court held that the Government must ensure that the members of the society reside in the 'neighbourhood' of the fishery and that the area of operation of the society is not the sole criterion for determining settlement."}
Fact of the Case:
Two fishery co-operative societies challenged the Government's order settling a fishery with a third society. The petitioners claimed that the settlement was made without considering the relevant factors and that the third society did not fulfill the requirements for direct settlement under the proviso to Rule 12 of the Fishery Rules.
Finding of the Court:
The court found that the Government did not make any endeavor to give settlement in accordance with the proviso to Rule 12. The claim of the fishery co-operative societies had been rejected on one or other grounds, which are in my opinion absolutely irrelevant and extraneous. No endeavor was made to find out who among all these fishery co-operative societies was entitled to get settlement by fulfilling the requirement of proviso to Rule 12.
Issues: 1. Whether the Government had the jurisdiction to give settlement of the fishery to the third society without fulfilling the conditions mentioned in proviso to Rule 12 of the Fishery Rules. 2. Whether the third society was entitled to get the settlement directly under proviso to Rule 12 of the Fishery Rules.
Ratio Decidendi: The court held that the Government's order of settlement was not in accordance with the law laid down by the court in a previous judgment. The court also held that the Government did not consider the relevant factors for giving direct settlement under the proviso to Rule 12 of the Fishery Rules.
Final Decision: The court set aside the Government's order of settlement and directed the Government to give settlement of the fishery to a fishery co-operative society under the proviso to Rule 12, strictly in accordance with the provisions of law.
2. In respect of this fishery there has been several litigations in the recent past because in every settlement, some unsuccessful societies have approached this Court.
3. The petitioner in Civil Rule No.2093 of 1995 is a co-operative society registered under the Co-operative Societies Act, 1949. This society was registered in the year 1953. The claim of the society is that all the members of the society are actual fishermen belonging to the Kaibarta community. This community is included in the listed class. The area of operation of the petitioner society is Rangamati Mouza, Sambari Mouza and Sapai Mouza of Darrang District consisting of 20 villages. Fishing and trade in fish are the only sources of livelihood of the members of the petitioner society.
4. On 20.4.94 the said fishery was settled by the Government with the petitioner society by way of direct settlement for a period of 5 years. The 5th respondent namely, M/s Baghpuri Maimal Min Samabay Samity Ltd approached this Court by filing a writ petition (Civil Rule No. 1523 of 1994) challenging the order of settlement dated 20.4.94. On 16.2.95 the aforesaid Civil Rule was disposed of by this Court by setting aside the order of settlement dated 20.4.94 and remanded the matter to the Government for making settlement by applying correct principle of law.
5. On 5.4.95 the petitioner society filed application praying for settlement of the fishery. The Government called for reports from the Deputy Commissioner, Mangaldai on 15.4.95. On 27.4.95 the Deputy Commissioner submitted reports in respect of the petitioner society stating, inter alia, that the petitioner society was formed with 100% members of fishermen belonging to the Scheduled Castes community and the fishery in question was within the area of operation of the society. Besides, the petitioner society was also found to be not defaulter in respect of Government revenue and there was no Bakijai proceeding pending against the fishery. On 19.5.95 the Deputy Commissioner, Darrang cancelled the settlement of the fishery made with the petitioner in pursuance of the Government order dated 9.5.95 and the order passed by this Court' in Civil Rule No.1523 of 1994. Thereafter, on 20.5.95 the Government passed the impugned order dated 20.5.95 settling the fishery in respect of respondent No.5 (Civil Rule No.2093 of 1995) and hence the present petition.
6. Similarly, the petitioner in Civil Rule No.2161 of 1995, namely, M/s Sati Radhika Matshyajibi Samabay Samity Ltd, Darrang filed the Civil Rule challenging the order of settlement dated 20.5.95 giving settlement to respondent No.3, namely, M/s Baghpuri Maimal Meen -Samabay Samity Ltd and prayed for quashing the order passed by the Government giving settlement. The £ contention of the petitioner in Civil Rule No.2161 of 1995 inter alia is that the settlement was given to M/s Baghpuri Maimal Meen Samabay Samity Ltd in purported exercise of power under proviso to Rule 12 of the Fishery Rules, without however the said society fulfilling the requirements for getting direct settlement under the proviso to said rule. According to the petitioner the said society was running 4 numbers of fisheries. The respondent society namely c M/s Baghpuri Maimal Meen Samabay Samity Ltd formed with the members belonging to Maimal community are not entitled to get direct settlement, inasmuch as under proviso to Rule 12 direct settlement can be given to fishery co-operative society with the members belonging to the Maimal community of Cachar District only. This community cannot be equaled with the Scheduled Cas
