Manoj Kumar Shahani vs The State Of Assam And 5 Ors
2021 Latest Caselaw 1186 Gua

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GAHC010000832020




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

                            Case No. : WA/7/2020

         MANOJ KUMAR SHAHANI
         S/O- SHRI KISHORI SHAHANI, R/O- KUMALIA CENTRE, P.O. PANIBHARAL,
         VIA BISWANATH CHARIALI, DIST.- BISWANATH, ASSAM, PIN- 784176.

         VERSUS

         THE STATE OF ASSAM AND 5 ORS.
         REP. BY THE ADDITIONAL CHEIF SECRETARY TO THE GOVT. OF ASSAM,
         FISHERY DEPARTMENT, DISPUR, GUWAHATI- 781006.

         2:THE DIRECTOR OF FISHERIES
          MEEN BHAWAN
          GUWAHATI- 781006
          DIST.- KAMRUP(M)
         ASSAM.

         3:THE COMMISSIONER
          NORTH ASSAM DIVISION AT TEZPUR
          DIST.- SONITPUR
         ASSAM
          PIN- 784001.

         4:THE DEPUTY COMMISSIONER
          BISWANATH
          DIST.- BISWANATH
         ASSAM
          PIN- 784176.

         5:BISWANATH KUMALIA MEEN SAMABAY SAMITI LIMITED
          P.O. PANIBHARAL
          PIN- 784176
          DIST.- BISWANATH
         ASSAM
          REP. BY ITS SECRETARY- SRI RAJU DAS.
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            6:THE SUPERINTENDENT OF POLICE
             BISWANATH
             DIST.- BISWANATH
            ASSAM
             PIN- 784176

Advocate for the Petitioner   : MR. K N CHOUDHURY

Advocate for the Respondent : GA, ASSAM


                                  BEFORE
                       HONOURABLE THE CHIEF JUSTICE
                HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

                                          ORDER

Date : 25-03-2021

(Sudhanshu Dhulia, CJ) Heard Mr. K. N. Choudhury, learned senior counsel for the appellant and Mr. T. C. Chutia, learned Additional senior Government Advocate, Assam, representing the State respondents as well as Mr. P. J. Saikia, learned counsel representing the private respondent no. 5.

2. This writ appeal has been filed by the appellant against the order dated 03.12.2019, passed by the learned Single Judge in WP(C) 391/2019, by which the writ petition filed by the appellant/writ petitioner claiming allotment of Biswanath Baghmara "Meen Mahal", in the district of Biswanath, Assam, was dismissed.

3. In the State of Assam a fishery would mean the waters declared as a fishery, by proclamation under Section 16 of the Assam Land and Revenue Regulation, 1886 which would include "Kheos" or fish ways, "Dobas" and "Beels". Rule 1 of the Assam Fishery Rules, 1953 is quoted as under:-

"1. Definition. - In these rules, unless there is something repugnant in the subject or context -

                     (a)       the term "fishery" means the waters declared to be a
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fishery by proclamation issued under Section 16 of the Assam Land and Revenue Regulation, 1886 (I of 1886) and includes Kheos or fish ways, Dobas and Beels; and "fish" includes shell-fish and turtles;

(b) the term "year" means twelve months from the 1 st April,

to the 31st March."

All the same, for the sake of convenience we would use only the term "fishery" as "fisheries" in the present order.

4. Allotment of fisheries in the State of Assam is governed by the Assam Fishery Rules, 1953 (hereinafter referred to as "the Fishery Rules"). As per Rule 13 of the Fishery Rules, the rights of fishing in 60 per cent of the total fisheries in the State of Assam are reserved in favour of cooperative fisheries societies, association or self-help group consisting of 100 per cent members from fisherman belonging to the Scheduled Caste community in the neighbourhood of the fishery concerned. Apart from this, the rights of fishing in the remaining 40% fisheries are to be settled by way of tender process. A detail procedure for settlement of fisheries in the State of Assam has been laid down under Rule 13 of the Fishery Rule, which reads as under:

"13. Settlement of Fisheries with Co-operative Societies.- (a) With the prior approval of the State Government not more than 60 per cent of fisheries in a Sub-Division available for settlement in a year shall be selected for sale under tender system only with the Co-operative Fishery Societies formed with 100 per cent shareholders from member of actual fishermen belonging to Scheduled Caste of the State and/or Maimal Community of the District of Cachar and registered under the Assam Co-operative Societies Act, 1949. Settlement of all such fisheries tenders of which have been accepted under Rule 5 shall be with the highest tender.

(b) The remaining fisheries in the Sub-Division available in that year under Page No.# 4/10

tender system of sale, shall remain open for settlement to all communities including Co-operative Societies as referred to in sub-rule (a) above.

(c) A Co-operative Fishery Society formed by members of actual fisherman belong to the Scheduled Castes/Maimal Community /Scheduled Tribes/Other Backward Classes and registered under the Assam Co-operative Societies Act, 1949, shall be given option to accept settlement of Fisheries of the category as mentioned in sub-rule (b) above at the highest tender, provided that their tender is within 7½ per cent of the highest tender.

(d) When the tenders for fisheries falling within the category referred to in sub- rule (b) above are below 7½percent of the highest tender (i) Co-operative Societies as stated in sub-rule (c) above (ii) Individual members of actual fishermen belonging to the Scheduled Castes and Maimal Community,(iii) Individual members of the Scheduled Tribes and other Backward Classes who may offer tenders not less than 60 per cent of the highest tender may be given option to accept settlement of the fisheries at the highest tender, in order of preference stated above subject to suitability of the tenderers.

(e) When a fishery referred to sub-rule (b) above fetching a tender not exceeding Rs. 50,000 per annum is settled with any individual member from actual fishermen belonging the Scheduled Castes, Scheduled Tribes/Maimal Community or Other Backward Classes the tender shall get a rebate of 7½ per cent as concession. But when a fishery fetching a tender not exceeding Rs. 1 lakh (Rupees one lakh) per annum is settled with any Fishery Co-operative Society Formed by members from Communities as stated above, the tenderred Society shall get a rebate of 10(ten) per cent as concession:

Provided that 10 per cent rebate as aforesaid shall not be available to Fishery Co-operative Societies formed with 100 per cent shareholders from actual fishermen belonging to the Scheduled Castes of the State and Maimal Community of the District of Cachar if the accept settlement of Page No.# 5/10

Fisheries as stated in sub-rule (a) above:

Provided further that such rebate shall not be admissible in case any individual or Fishery Co-operative Society of any protected community offers the highest tender.

(f) Any tendered claiming the concession provided inthis rule shall indicate the same in his tender."

5. The undisputed fact is that the category of the fishery in the present case falls outside the aforesaid 60 per cent, i.e. itfalls under the remaining 40 per cent and, therefore, it is to be settled by way of tender process, as given in Rule 13(b), (c), (d) and (e). In the tender process undertaken for settlement of the fishery in question, the writ appellant/writ petitioner was the highest bidder with his bid value of Rs. 12,01,551.00, for one year, whereas the bid value of the respondent no. 5 cooperative society was Rs. 5.75,501.00. Nevertheless, the fishery in question was settled with the respondent no. 5 cooperative society, which was challenged by the writ petitioner before the learned Single Judge. However, the claim of the writ petitioner did not find favour with the learned Single Judge and the writ petition was dismissed.

6. The case of the writ petitioner/writ appellant before the learned Single Judge was (as it is before this court) that undisputedly he was the highest bidder in the tender process and, therefore, the fishery in question ought to have been settled with him.

7. Under sub-rule (c) of rule 13 of the Fishery Rules, in case there is any cooperative society as mentioned above, which offers a bid value which is not 7½ per cent of the highest bidder, then such cooperative society is to be given the settlement. But this was, admittedly, not the case. The respondent no. 5 cooperative society does not fall in the category as mentioned in sub-rule (c). Then Sub-rule (d) of the Fishery Rules provides that when there is no bidder falling in the category as mentioned in sub-rule (c), then the other bidders belonging to Scheduled Castes, Maimal Page No.# 6/10

Community, Scheduled Tribes and Other Backward Classes, either in the form of cooperative society or individual, whose bid value is not less than 60 per cent of the highest bidder, would be given option to accept the settlement. However, again, the bid value offered by the respondent no. 5 cooperative society (Rs. 5,75,501.00) being less than 60 per cent of the bid value of the highest bidder (Rs. 12,01,551.00), it did not fall within the category as mentioned in sub-rule 13(d). The learned Single Judge, however, opined that this 60 per cent range was applicable only to category (iii) of sub-rule 13(d), i.e individual members of the Scheduled Tribes and Other Backward Classes, and it will not be applicable to others. The learned Single Judge observed that the claim of the respondent no. 5 cooperative society will stand even if it's bid value is less than 7½ per cent of the bid value of the highest bidder. The reasoning given by the learned Single Judge in paragraphs 17, 18, 19, 20, 21 and 22 of the judgement is as under:

"17. There is no dispute above the fact that the fishery involved in this case is a 40% category fishery and therefore, the same falls under Rule 13(b). Rule 13(c) of the Rules of 1953 confers power upon the Government to give option to accept settlement of the fishery falling under sub-rule (b) to the Co-operative Fishery Society formed by members of actual fisherman belonging to the categories mentioned therein or the persons named therein, at the highest tender provided their tender is within 7½% of the highest tender. As noted above, the tender of the respondent No. 5 is not within 7½ per cent of the rate quoted by the writ petitioner. As such, Rules 13(c) would not be applicable in this case.

18. In so far as Rule 13(d) is concerned, the said provision permits the Government to give an option of settlement of fishery referred to in sub-rule (b) to three categories of fisherman referred to in the sub-rule (d). Under sub-rule

(d) such offer can be made if the tender is below 7½% of the highest tender.

Sub-rule (d) also lays down the order of preference that is to be followed while Page No.# 7/10

giving the options. Under sub-rule (d) third preference is to be given to an individual member of the Schedule Tribes and Other Backward Classes whose tender is not less than 60% of the highest tender.

19. From a reading of sub-rule (d) of Rule 13 the criteria of not below 60% of the highest tender will be applicable only in case of category (iii) mentioned under the sub rule (d) which relates to an individual member but in case of a registered Fishery Cooperative Society formed by members of actual fisherman belonging SC/ Maimal Community/ ST/ OBC, the criteria of quoting rate within 60% of the highest tender has not been made applicable. Instead, rules provide that such co-operative society quoting less than 7½% can be offered settlement at the highest tender.

20. A perusal of sub-rule (d) also goes to show that the first preference is to be given to a registered Fishery Co-operative Society and an individual member is to get the third preference subject to his rate being within 60% of the highest tender. Having regard to the scheme of sub-rule (d), I am of the considered opinion that the requirement of quoting rate within 60% of the highest bidder would be applicable only in case of an individual member included in category

(iii) of the sub-rule and not for the co-operative societies.

21. In this case, there is no dispute about the fact that the respondent No. 5 is a registered Co-operative Society of actual fisherman within the meaning of sub-rule (c) of Rule 13. Moreover, the rate quoted by the respondent No. 5 is not only less than 7½% of the highest bidder but the respondent No. 5 has also agreed to accepted the settlement of the fishery at the highest tender value by adopting a resolution on 11-10-2018. As such, I am of the opinion that the conditions prescribed by Rule 13(d) of the Rules of 1953 has been met in this case for awarding the settlement of the fishery in question in favour of the respondent No. 5.

22. From a perusal of the various sub-rules of Rule 13 of the Fishery Rules, it is Page No.# 8/10

apparent that sub-rule (c) and (d) operate in distinctly different spheres and independent of one another. While sub-rule (c) of Rule 13 deals with tenders coming within 7½% for the highest tender, in case of a Fishery Co-operative Society, sub-rule (d) deals with those which are below 7½% of the highest tender. From a conjoint reading of sub-rules (c) and (d) it appears that in case of a 40% category fishery, even if a tender is floated, the Government would have the discretionary power to give option of accepting settlement of the fishery to a Fishery Co-operative Society at the rate quoted by the highest bidder, regardless of the fact that the rate quoted by the co-operative society is either within or below 7½% of the highest tender."

8. Having perused the rules, which have been placed before this court, we, however, respectfully disagree with the findings of the learned Single Judge as the rules are absolutely clear in dealing with various contingencies that may arise during a tender process for settlement of a fishery. Undoubtedly, the rules are overwhelmingly in favour of a fishing community, whether cooperative society or individual members, so far as settlement of fishery is concerned. However, in the present case, when there was no such cooperative society or individual members whose bid value was not less than 60 per cent of the highest bidder, in such eventuality, the fishery ought to have been settled with the highest bidder, who may not be a member of any of the communities as mentioned in sub-rule (d).

9. We also find support from the judgement of a Division Bench of this court rendered in the case of Chilapani Fishery Co-operative Society Ltd. vs. The Assam Board of Revenue, Gauhati and Others, reported in 1983 GLR 185, wherein, while deciding a similar issue, the Division Bench held in paragraphs 3 and 4 as follows:

"3. Admittedly, the fishery at hand is not covered by the sub-rule (a). The claim of the petitioner is, however, founded on sub-rule (b) inasmuch as it is apparent that the case is not covered by sub-rule (c) because the petitioner's tender was Page No.# 9/10

only for Rs. 1,825.25, whereas the highest tender was for Rs. 5,525/-, and as such the tender cannot be said to be "within 7½ per cent of the highest tender.

This much is not in dispute, may, it is indisputable. Shri Sarma, however, contends that the case of the Society is covered by sub-rule (d) as according to him that part of this sub-rule which speaks of the tender being "not less than 60 per cent of the highest bidder" does not apply in case of a co-operative society but is confined to the tenders of individual members of the Scheduled Tribes and Other Backward Classes. This submission has not been advanced keeping in view the comma which has appeared in sub-rule (d) after the second category mentioned in the sub-rule, namely "Individual members of the actual fishermen belonging to the Scheduled Castes and Maimal Community". We may however remember that "grammar and punctuation are hapless victims of the pace of life" as stated in State of West Bengal vs. Swapan Kumar, AIR 1982 SC 949; and the approach in such a matter without going by commas has to be taken to discover the true meaning" having regard to the substance of the matter as it emerges from the object and purpose of the Act, the context in which the expression is used and the consequences necessarily following upon the acceptance of any particular interpretation (See para 5 of the judgment).

4. If the submission of the learned counsel were to be accepted that would mean that a Co-operative Society could claim consideration under sub-rule (d) despite its tender being for below the limit of 60 per cent, indeed, even if it has given a token tender was say Rs. 1/-. This interpretation cannot be accepted when it is remembered that option under sub-rule (c) and (d) was being given in the 40 per cent non-reserved fisheries. Any other view would amount to giving option to the Co-operative Societies in virtually all the fisheries, because we may well presume that such a Society would be one of the tenderers in practically all such settlements. The result would be that instead of 60% reservation, the percentage of reservation would come to 100%, which would Page No.# 10/10

be against the whole tenor of Rule 13. This apart, the interpretation sought to be put by the learned counsel would not give meaning to this sub-rule, as if we were to agree that the requirement of the tender being "not less than 60 per cent of the highest tender" was not to apply because of the aforesaid comma, what has followed these words in the sub-rules namely "may be given option", would also not apply to the tender of a Co-operative Society as there is no other punctuation in between these two expressions. This would render the sub-rule lame and absolutely non-applicable to the first two categories. Apparently such a meaning cannot be countenanced."

10. Consequently, the writ appeal succeeds. The order of the learned Single Judge dated 03.12.2019, passed in WP(C) 391/2019, is set aside.

11. Having made the aforesaid judgment, we hereby direct that the right of fishing in the fishery in question be settled in favour of the writ appellant.

12. However, at this stage the learned counsel for the respondent no. 5 cooperative society Mr. P. J. Saikia has raised certain objection as to the eligibility of the present appellant. The respondent no. 5 shall be at liberty to raise all objections before the Deputy Commissioner concerned, who shall hear the respondent no. 5 before making the settlement.

                                       JUDGE                        CHIEF JUSTICE




Comparing Assistant