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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MANISH CHOUDHURY, J.
29 No. Nekera Lekera Min Samabay Samity Limited, Represented by its Secretary,
Sri Niranjan Roy, S/o-Late Girindra Roy – Appellant
Versus
The State of Assam – Respondent
W.P.(C) 5696 of 2021
Decided on : 21-06-2022
Constitution of India, 1950 - Article 14, 226 - Assam Fishery Rules - Rule 8 [b], 8 [b] [i], 12 - Assam Land and Revenue Regulation, 1886 - Section 155 and Section 156 - Indian Fisheries Act, 1897 - Section 6 - Challenging an order – Settlement - Power of High court to issue writs - Whether the quantum of loss has to be specifically assessed for extending the term of an existing lease - Whether the relevant factors are taken into account or as to whether to arrive at a decision the administrative authority has taken irrelevant factors in consideration - Decision of administrative authority vested with discretionary power under a statute must have to be within four corners of the law. (Para 20).
Findings of the Court :
When impugned order of extension is once again looked at, it is demonstratively apparent that the authority vested with the discretion under Rule 8 [b] [i] of Assam Fishery Rules had taken some irrelevant factors into consideration and did not take some relevant factors into consideration during decision making process - Even if non-assessment of the quantum of loss and the date of submission of two representations are ignored for the time being, then the period during which the lessee appeared to have suffered the alleged loss was only the period from March, 2020 till the last date of the lease - If that period of about one year is assumed to be a period of total loss, which was never the case of the respondent no. 8 Society, then also the period of extension can be made for a period of about one year by all stretch - Thus, leaving out the three irrelevant factors which were taken into consideration by the authority and taking into consideration the sole relevant factor [Covid-19 pandemic], this Court is of the unhesitant view that the decision to extend the term of the lease for 2 [two] years has suffered from unreasonableness and arbitrariness and the same also amounted to denial of the benefit of enjoyment of the Fishery by the other legally eligible societies including the petitioner Society, in the neighbourhood - Since the impugned order of extension is not arrived at on the basis of relevant factors, the most pertinent amongst it is the quantum of loss vis-à-vis the reasonable period, the same is liable to be interfered with.
Result : Writ petition allowed.
JUDGMENT :
The petitioner has instituted this writ petition under Article 226 of the Constitution of India challenging an order dated 05.02.2021 passed under the hand of the Joint Secretary to the Government of Assam, Fishery Department [the respondent no. 2], whereby, the term of a fishery named 29 No. Nekera Nekeri Fishery, District – Morigaon [‘the Fishery’, for short] had been extended for a period of 2 [two] years, after expiry of the regular settlement period of 7 [seven] years on 25.03.2021, in favour of the then existing lessee viz. M/s No. 129 Haria Dablong Meen Samabai Samity Limited [hereinafter referred to as ‘the respondent no. 8 Society’, for convenience].
2. The background facts, in brief, are that pursuant to a tender process, the Fishery came to be settled with the respondent no. 8 Society vide an Order dated 18.02.2014, followed by another Order dated 14.03.2014, for a period of 7 [seven] years w.e.f. the date of handing over possession of the Fishery. The Fishery was settled with the respondent no. 8 Society at a settlement amount of Rs. 6,55,000/-per annum. The term of settlement of 7 [seven] years was due to expire on 25.03.2021.
2.1. The impugned order dated 05.02.2021 has made mention of a detailed report of the District Development Commissioner [DDC], Morigaon which was stated to be based on field enquiries conducted by the Circle Officer, Mayong and the District Fishery Development Officer [DFDO], Morigaon. The report of the DDC, Morigaon was forwarded by the Deputy Commissioner, Morigaon to the Fishery Department on 08.01.2021 in response to a directive contained in a letter of the Fishery Department dated 29.09.2020. The impugned order dated 05.02.2021 has made mention of four factors: -firstly, there is one agricultural bundhof about 200 metres in length, adjacent to the Fishery; secondly, there are 2 [two] sluice gates on either side of the Fishery, out of which one is broken and damaged. It has been observed that due to the damaged sluice gate, water as well as fish do not remain within the Fishery and due to closure of the operative sluice gates by the concerned department as per necessity, it used to prevent water or fish from entering into the Fishery; thirdly, the farmers in the neighbourhood of the Fishery draw water from the Fishery using pumps for watering paddy cultivation and as a result, there is decrease in the water level of the Fishery, which has affected in not raising the fish production up to the expected level; and fourthly, the fish production has been severely affected from March, 2020 onwards for more than 6 [six] months due to situation arising out of Covid-19 pandemic.
2.2. Based on the grounds cited in the representations, submitted by the respondent no. 8 Society on 21.09.2020 and 29.09.2020, seeking extension of the term of the Fishery and on the basis of the reports of the field enquiries, cited above, the Government in the Fishery Department, as reflected in the impugned order, had reached the view that extra-ordinary situation beyond the control of the lessee had warranted extension of lease in terms of Rule 8 of the Assam Fishery Rules, 1953, as amended [‘the Assam Fishery Rules’, for short] and it was on that premise, the Government had extended the term of the Fishery for a period of 2 [two] years on the expiry of the regular settlement period of 7 [seven] years. The respondent no. 8 Society was, thereby, directed to clear 50% of outstanding revenue before formal handing over of possession of the Fishery and the balance 50% in one installment by September, 2021. It is this order extending the period of settlement of the Fishery by 2 [two] years, which has been assailed by the petitioner, M/s 29 No. Nekera Lekera Min Samabay Samity Limited.
3. I have heard Mr. S. Banik, learned counsel for the petitioner; Mr. D.K. Sharma, learned Additional Senior Government Advocate, Assam for the respondent nos. 1-7; and Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. P. Bhard
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