Review.Pet./10/2021
2021 Latest Caselaw 3296 Gua

 GAHC010017692021




            IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

                       REVIEW PETITION NO.10 OF 2021
                       Katahguri Meen Samabay Samity
                       Limited,   a    Co-operative   Society
                       registered under Societies Registration
                       Act, 1949, represented by its
                       President, Kandulal Mandal (aged
                       about 59 years), son of Bhim Chandra
                       Mandal, resident of Village No.1
                       Murkata,    PO:    Rajamayong,      PS:
                       Mayong, District: Morigaon, Assam.
                                            ........Petitioner
                                   -Versus-

                       1. The State of Assam, represented by
                       the Commissioner & Secretary to the
                       Government      of  Assam,    Fishery
                       Department, Dispur, Guwahati -
                       781006.

                       2. The Joint Secretary to the
                       Government  of   Assam, Fishery
                       Department, Dispur, Guwahati -
                       781006.

                       3.   The    Deputy     Commissioner,
                       Morigaon, PO, PS & District: Morigaon,
                       Assam.

                       4. M/s Dhipujijan/Garanga/Garchak
                       Malia Min Palan Co-operative Society
                       Limited, PO: Barpak, PS: Mayang,
                       District: Morigaon, Assam.

                       5. No.11 Part-V Kalong Nadi Anchalik
                       Meen Samabai Samity Limited, a
                                                                -2-

                          registered Fishery Co-operative Society
                          Niz Gobardhan, PO: Chandrarpur,
                          District: Kamrup (M), Assam.

                                            ........Respondents

-BEFORE-

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

For Review Petitioners : Mr. KK Mahanta, Senior Advocate.

Mr. KM Mahanta, Advocate.

For Respondent Nos.1 to 3 : Mrs. RB Bora, Jr. Government Advocate, Assam.

For the Respondent No.4 : Mr. S. Borthakur, Advocate.

For the Respondent No.5 : Mr. J.I. Borbhuiya, Advocate.

Date of Judgement & Order : 6th December, 2021.

JUDGMENT & ORDER (ORAL) (Sudhanshu Dhulia, CJ)

Heard Mr. K.K. Mahanta, learned senior counsel for the review petitioner. Also heard Mrs. R.B. Bora, learned Junior Government Advocate, Assam, appearing for the respondent Nos.1, 2 & 3; Mr. S. Borthakur, learned counsel, appearing for the respondent No.4 and Mr. J.I. Borbhuiya, learned counsel, appearing for the respondent No.5.

2. This review petition has been filed by the petitioner/writ appellant with a prayer that the order dated

05.01.2021 passed by the Division Bench of this Court in Writ Appeal No.142/2020 should be reviewed.

3. The grounds urged for review of the said order by Mr. K.K. Mahanta, learned senior counsel for the review petitioner are precisely that the order dated 05.01.2021 clearly reflects that the order has been passed on the basis of an understanding/compromise between the parties and hence the said order was passed with certain directions, which read as under:-

"Today, when the matter was heard, all parties are agreed that the writ appeal can be disposed of by issuing necessary directions which would be beneficial to all parties at large and would also subserve the principles governing settlement of State largesse.

On the above and without entering into the merits of the case in greater details, the writ appeal stands disposed of with the following directions :

(1) As the appellant/writ petitioner have shown that it has deposited kist money until 17.07.2021, which has also been duly accepted by the settlement authority, steps now be taken by the Deputy Commissioner, Morigaon to verify, calculate and refund such amount to the appellant proportionate to the period covering 18.08.2020 to 17.07.2021, within a period of 3(three) weeks from today.

(2) Steps be initiated by the Deputy Commissioner, Morigaon for issuing tender for settlement of Dhipujijan/Garanga/Garchak, Malia Group Fishery in terms of the statutory provisions under the Assam Fishery Rules, 1953, within a period of 30(thirty) days from the date of receipt of this order and conclude settlement of the fishery to the valid successful bidder within 15(fifteen) days next.

(3) The Deputy Commissioner, Morigaon, to allow the respondent no.4 to operate the fishery on daily basis until final settlement of the fishery in question is made through tender process, not exceeding the period indicated in (2) above."

4. Now the grounds urged in the present review petition is that in the said order, the then learned counsel had consented to compromise without seeking instructions from the review petitioner and in fact the effective order which had been passed by the Division Bench goes against the review petitioner inasmuch as according to the review petitioner, since the seven years period of settlement did not operate smoothly and was interrupted by interim orders in the writ petition and when finally they had succeeded in the writ appeal, the concerned Deputy Commissioner had clarified that what would be counted for the seven years period of settlement will be the regular period of settlement and not the day-to-day arrangement. In other words, since the day-to-day arrangement itself was for three years, the review petitioner would liable to get a further period of three years from 2019 onwards and, therefore, it should have continued till December, 2022. Hence consent given by its counsel to an arrangement which effectively terminated the rights of the review petitioner in 2019 itself, was clearly prejudicial to the interest of the review petitioner and, therefore, it is liable to be heard again. In order to show their bonafide, the review petitioner has also drawn the attention of this Court to a complaint filed by them against their counsel before Bar Council of Assam, Nagaland, Mizoram and Arunachal Pradesh, which has been annexed along with the review petition.

5. Mr. S. Borthakur, learned counsel appearing for the respondent No.4 has argued that there is no error apparent on the face of the record and under the limited jurisdiction of this Court, the review petitioner is not liable to be heard.

6. All the same, after considering the rival submissions of the parties and in order to bring an end to this controversy, we must hear the review petitioner afresh on merits. The order dated 05.01.2021 of the Division Bench is hereby recalled.

7. In order to get better perspective in the matter, brief facts of the case are stated herein under.

Fishing rights of the fishery, namely, Dhipujijan/ Garanga/Garchak/Malia Group Fishery, were settled in favour of the review petitioner for a period of seven years with effect from 14.12.2012 by way of a settlement. In the usual course, this seven years period would have come to an end on 13.12.2019. All the same, the said settlement given in favour of the review petitioner was challenged in two separate writ petitions by two bidders to the settlement being WP(C) No.138/2013 and WP(C) No.328/2013, one was the highest bidder and the second was the ninth highest bidder. The writ petitions of the bidders did find favour of the learned Single Judge and the settlement made in favour of the review petitioner was quashed and set aside vide order dated 27.11.2013.

The said order was challenged before the Division Bench in a writ appeal which was finally disposed of by the Division Bench on 14.06.2016 by allowing the writ appeal of the review petitioner and setting aside the order dated 27.11.2013 passed by the learned Single Judge. The undisputed fact is that the review petitioner continued to enjoy all fishery rights during its period and remained in possession of the fisheries by the interim orders of the Court, although this arrangement was called by the Fishery Department as "Day-to-Day Arrangement".

8. Consequent to the order of the Division Bench dated 14.06.2016, the Joint Secretary to the Government of Assam, Fishery Department passed an order on 30.06.2016 directing the concerned Deputy Commissioner, Morigaon District as follows:-

"........ I am directed to request you kindly to comply with the Hon'ble High Court's order dated 14/06/2016, formally handing over the possession of Fishery in question to the 3 rd highest bidder i.e. Katahguri Min SS Ltd. as per settlement order Dtd. 14/12/2012 considering the Govt. revenue. While giving possession of the Fishery, you are requested to include the regular settlement period and exclude the daily basis settlement period from settlement period as enjoyed by the lessee society."

9. The review petitioner on the strength of this direction continued to work. Meanwhile, when in the year 2019 proceedings were to be initiated for settling the rights afresh (as the initial seven years period was coming to an end in December, 2019), a clarification was sought by the

concerned Deputy Commissioner vide his letter dated 29.02.2020 that while giving formal possession of the fishery to the review petitioner, directions were given by the Government to exclude the daily basis settlement period from settlement period and, therefore, what needs to be done? On this request, the Joint Secretary to the Government of Assam, Fishery Department then passed a detailed order on 04.08.2020 stating that the daily basis settlement is not liable to be excluded and shall be included in the seven years period. Relevant portion of the order dated 04.08.2020 reads as under:-

"It is submitted that the existing lessee has continuously run the fishery including the intervening period under same rate on daily basis when the Hon'ble High Court set aside the Govt. order of regular settlement vide No.FISH 193/2010/Pt/294 dated 14.12.2012.

Thus Govt is of the view that the subsequent Govt instruction vide letter No.FISH 193/2010/Pt- II/351 dated 30.6.2016 to exclude the period of temporary settlement in term Govt. Order vide No.FISH 193/2010/ Pt-I/373 dated 17.12.2013 was a pre-emptive move at that stage for reasons best known to the concerned official of the Department of that period. In this connection, Govt took into consideration earlier decision on similarly situated matter.

Thus, Govt is of the firm view that the lessee society has over enjoyed the fishery beyond 7 years tenure on the basis of an administrative order issued in 2016 without having legal sanctity.

It is seen that another case has been filed by M/S No.11 Part V Kalong Nadi Anchalik MSS Ltd vide WP(C) No.6825/2017 alleging that the lessee society has sub let the fishery to 2(Two) private individuals who were made Respondent in the above case. The Hon'ble High Court vide order dated 18.11.2019 directed DC, Morigaon to dispose of the representation with a speaking order with proper opportunity to both parties for representation has been disposed of by DC, Morigaon with a speaking

order rejecting the allegation of the writ petitioner of subletting the fishery by existing lessee vide No.MRF 7/2010/Pt/241 dated 30.12.2019.

Thus after consideration of all materials in hand, Govt is pleased to discontinue settlement of Dhipujijan/ Garanga/Garchak, Malia Group Fishery in Morigaon district vide order No.FISH 193/2010/Pt/294 dated 14.12.2012 R/W administrative instructing vide No.FISH 193/2010/PT-II/351 dated 30.6.2016 in favour of M/s Kotahguri MSS Ltd with immediate effect as the settlement period of 7 years including the daily basis settlement which was without any break is already over."

10. Now fishery rights were to be given afresh and the possession was to be taken away from the review petitioner as the seven years period was coming to an end. The review petitioner challenged the order dated 04.08.2020 before the learned Single Judge of this Court in a writ petition being WP(C) No.3164/2020. The writ petition of the review petitioner, however, did not find any favour and was dismissed vide order dated 23.09.2020. The findings given by the learned Single Judge in Paragraphs 6, 7, 8 & 9 are as follows:-

"6) It is seen that if 7 years settlement time is computed from 14.12.2012, the 7(seven) year settlement period would have expired on 14.12.2019.

There is no dispute on this at the Bar. It is also not in dispute that during the said period between 14.12.2012 to 14.12.2019, the petitioner was never dispossessed from the said fishery. Therefore, in other words, the petitioner remained in unhindered physical possession of the said fishery for the entire tenure of 7(seven) years, save and except alteration of the nomenclature of his settlement from a "regular settlement" to a "daily basis settlement", in the midst of the regular settlement period, but without change in the revenue payable by the petitioner to the State, in other words, without the petitioner enriching the State in any manner whatsoever. This position is also

undisputed at the Bar. Rather, the petitioner had been permitted to over-enjoy the said fishery from 14.12.2019 till the petitioner was ousted on 04.08.2020.

7) It can be appreciated that if during the continuance of the lease, the lessee is unable to enjoy the fishery for any lawful reason, in a given case, it might be permissible for the competent authority to extend the period of lease so as to compensate the lessee for the lost period. However, in this case in hand, the petitioner has not lost any period during his settlement period w.e.f. 14.12.2012 to 14.12.2019. The learned counsel for the petitioner has not been able to show any provisions contained in the Assam Fishery Rules, 1953 which permitted the sitting lessee the benefit of extension of fishery by excluding the "daily basis settlement period" during continuance of the period of such lease, but during which time he was otherwise in possession of such fishery. Moreover, on a perusal of the common judgment and order dated 14.06.2016 in W.A. Nos. 413/2013 and 415/2013, there appears to be no direction that the daily basis settlement period should be excluded from the regular settlement period.

8) Therefore, the Court is of the considered opinion that as the direction contained in the order no. FISH 193/2010/Pt-II/351 dated 30.06.2016, to the Deputy Commissioner, Morigaon to exclude the daily basis settlement period from regular settlement period is not based on any legal provisions contained in the Assam Fishery Rules, 1953. Having arrived at the said conclusion, it is consequentially held that the settlement period of the said fishery with the petitioner was for a period from 14.12.2012 and had come to an end on 14.12.2019. Therefore, as a natural fall-out, it was not necessary for the State to give an opportunity of hearing to the petitioner before discontinuing the lease of the said fishery as no lawful lease exists after expiry of 14.12.2019. Hence, in the further considered opinion of the Court, the petitioner has over- enjoyed the said fishery upto 04.08.2020. Therefore, no interference is called for in respect of that part of the impugned order no. FISH 193/2010/PtI/522 dated 04.08.2020, by which settlement of 25 No. Dhepujijan, 28 No. Garonga, 103 No. Garsag, and 104 No. Malia group fishery with the petitioner was discontinued. Insofar as the projection made by the petitioner is concern that they have paid revenue to the Govt. up to 17.07.2021. However, as the State had revoked the lease by virtue of order

dated 04.08.2020, the petitioner may be well advised regarding what has to be done with the advance revenue so paid by the petitioner.

9) Before parting with the records, it is deemed appropriate to mention herein that it is seen that the petitioner has assailed the impugned order dated 04.08.2020. However, the said order consists of two distinct parts, first part being the discontinuance of settlement of the said fishery with the petitioner which has been assailed, and the second part consists of settlement of the said fishery with respondent no.4 on daily basis, which appears to be not under challenge. The lack of challenge is inferred because there is no corresponding statement in the writ petition and even in the prayers made in the writ petition, no mention has been made as regards settlement of the said fishery on "daily basis" to the respondent no.4. There is also no prayer for a direction to the respondent nos.1 to 3 to go for expeditious re-tendering. Moreover, in the writ petition filed by the petitioner, it is not Page No.# 7/7 desirable that any directions be issued to the State respondent nos. 1, 2 and 3 at the instance of oral prayer made by the learned counsel for the respondent no.5. Therefore the ratio of the cases cited by the learned counsel for respondent no.5 does not come to the aid of the respondent no.5, for which the said cases are not discussed herein to avoid burdening this order with volume."

11. Aggrieved by the decision of the learned Single Judge, the review petitioner had filed a writ appeal being Writ Appeal No.142/2020 before this Court on which the aforesaid order dated 05.01.2021 was passed, which we have already reproduced earlier in this order.

12. We have already indicated above that we have reopened the entire issue and are presently hearing the writ appeal on its merit. The grounds urged by Mr. K.K. Mahanta, learned senior counsel for the review petitioner/ appellant are that the review petitioner/appellant was

given settlement of a fishery for a period of seven years, which was to run from 14.12.2012 to 13.12.2019. Between this period, for a period of three years the review petitioner was running the settlement but on daily arrangement basis. It was not a regular arrangement. All the same, we have already seen the findings of the learned Single Judge on this aspect, i.e. except for the nomenclature between a regular arrangement and a daily basis arrangement there is absolutely no difference as to how the present fishery was being run. The review petitioner continued to catch the same amount of fish which was being done from the fishery on regular basis. At least nothing has been stated before this Court in any manner as to on this count whether there was any difference. Definitely it continued to pay the same amount of rent or fee to the Fishery Department and the review petitioner has not been able to show as to how it was prejudiced to run the fishery on a daily settlement basis, instead of regular basis. In fact the admitted position is that if the seven years period would have been counted as a continuity then it should have ended on 13.12.2019 whereas the fact is that the review petitioner continued to enjoy the benefits of the fisheries till 04.08.2020.

13. Another point raised by Mr. K.K. Mahanta, learned senior counsel for the review petitioner is that once the Joint Secretary has explained the position of the State Government that only the regular period of settlement will be counted for the seven years and the three years period

would be excluded and this was done by his order dated 30.06.2016, the subsequent clarification made on 04.08.2020 by the Joint Secretary amounts to taking away the valuable rights of the review petitioner as it deprives the review petitioner of three years of settlement and since the admitted position is that no opportunity of hearing was given to the review petitioner while doing so and the order dated 04.08.2020 is in violation of the principles of natural justice and fairplay, an interference was called for by the learned Single Judge.

14. The authority which has passed the order dated 04.08.2020 was authorised to pass such an order. On this, there is no doubt. To be fair to the review petitioner, it must also be placed on record that while doing so, under the normal circumstances a notice or an opportunity of hearing should have been given to the review petitioner. It has not been done. All the same, no benefit of this can be given to the review petitioner for the simple reason that we are in complete agreement with the findings of the learned Single Judge that the seven year period will be counted as a continuity from 14.12.2012 and would end on 13.12.2019. Therefore, in effect no prejudice has been caused to the review petitioner even when no opportunity of hearing was given by the Joint Secretary before passing the order dated 04.08.2020. We say this also being aware of the fact that the review petitioner has already over stayed the period of settlement by about eight months as

its period of settlement would have come to an end on 13.12.2019 but it continued till 04.08.2020.

15. Under these circumstances, we do not find any merit in the writ appeal, as there is no anomaly in the order of the learned Single Judge dated 23.09.2020. Consequently, we dismiss the present review petition.

        JUDGE                      CHIEF JUSTICE




Comparing Assistant