Gauhati High Court
No. 147 Manipur Fishery Co ... vs The State Of Assam And 4 Ors on 13 October, 2023
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GAHC010164642023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4299/2023
NO. 147 MANIPUR FISHERY CO OPERATIVE SOCIETY LTD.
REP. BY ITS SECRETARY SRI BROJEN BISWAS S/O LT. JAGABANDHU
BISWAS AGED ABOUT 70 YEARS HAVING OFFICE AT ROINAPATHER P.O.
AND P.S. MORIGAON DIST. MORIGAON ASSAM PIN 782210
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP BY THE SECRETARY TO THE GOVT. OF ASSAM FISHERY DEPTT.
DISPUR GUWAHATI PIN 781006
2:THE JOINT SECRETARY
TO THE GOVT. OF ASSAM FISHERY DEPTT. DISPUR GUWAHATI PIN 781006
3:THE DEPUTY COMMISSIONER
/DISTRICT COMMISSIONER
MORIGAON
DIST. MORIGAON ASSAM
4:THE DISTRICT FISHERY DEVELOPMENT OFFICER
MORIGAON
P.O. AND P.S. MORIGAON
DIST. MORIGAON ASSAM PIN 782105
5:35 NO. PAKARIA MEEN SAMABAY SAMATI LTD.
REP. BY ITS SECRETARY JATINDRA DAS R/O KARCHUWABORI
SHIMULTOLA P.S. JAGIROAD DIST. MORIGAON ASSAM PIN 78244
Advocate for the Petitioner : MS B DEVI
Advocate for the Respondent : GA, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
13.10.2023
Heard Ms. B. Devi, learned counsel for the petitioner; Ms. M.D. Bora, learned Standing
Counsel, Fishery Department for the respondent nos. 1, 2 & 4; and Mr. M. Chetia, learned Junior
Government Advocate, Assam for the respondent no. 3; and Mr. M.K. Hussain, learned counsel for
the respondent no. 5.
2. The petitioner society, a registered cooperative society, was settled with a fishery named
'162/163/164 no. Khandajan/Sidhli/Gatua Group Fishery, District - Morigaon' ['the Fishery', for
shot] situate in Morigaon District, a 60% category fishery, originally by a settlement order dated
21.05.2013 a a settlmetn amount of Rs. 6,51,300/- per annum. The period of settlement of the
Fishery was for 7 [seven] years. Prior to expiry of the original period of settlement for 7 [seven]
years on 21.05.2020, the petitioner society submitted an application for extension of the period of
settlement of the Fishery. As the Government took some time to take the decision on the prayer
for extension, the petitioner society was allowed to run the Fishery in the interregnum, on daily
basis @10% above earlier settlement of Rs. 6,51,300/- per annum, till a decision on the matter of
extension of the settlement period, as a stop gap arrangement by an order dated 21.05.2020.
The Government in the Fishery Department after causing enquiry, had found that a part of the
Fishery area measuring about 12 bighas, that is, about one-fourth of the Fishery was filled with
river sand of Brahmaputra. The enquiries revealed that few small ponds were also dug by the
local people and as a result, a part of the Fishery could not be used for fishing by the lessee i.e.
the petitioner society, due to encroachment by the local people. With a view to make good the
loss, the Government had exercised power conferred under Rule 8[b] [ii] of the Assam Fishery
Rules, 1953 to extend the period of settlement for another 3 [three] years to be counted from the
expiry of the original 7 [seven] years settlement period, that is, up to 21.05.2023.
2.1. During the currency of the extension period, the petitioner society made an application
before the Government in the Fishery Department with a report of the Circle Officer, Mayong
Revenue Circle dated 18.05.2020, for digging of the Fishery to remove excess sand. The
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Government in the Fishery Department asked the Deputy Commissioner, Morigaon to look into the
matter and if found feasible to accord permission to the petitioner society to dig the Fishery with
clearance from the Forest Department inter alia with a condition that the lessee should submit an
undertaking to the effect that if any adverse order would be passed in a pending writ petition,
W.P.[C] no. 3983/2020 against extension of lease of the Fishery, the lessee would not be
permitted to claim any relief on the plea that it incurred expenditure for digging the Fishery. The
said decision of the Government in the Fishery Department was conveyed to the Deputy
Commissioner, Morigaon vide a Communication dated 10.03.2021.
2.2. It is the case of the petitioner that it was only on 15.03.2023 the District Administration
permitted the petitioner society to carry out the digging of the Fishery at its own cost. The
respondent no. 5 society had, in the meantime, instituted a writ petition, W.P.[C] no. 3902/2023
agitating a grievance that despite expiry of 3 [three] years extension period of settlement of the
Fishery on 21.05.2023, no steps were found to have taken by the State respondents authorities
for initiating tender process for settlement of the Fishery. The writ petition, W.P.[C] no. 3902/2023
came up for consideration on 30.06.2023. After hearing the parties including the petitioner
society who was impladed as the respondent no. 7 therein, the said writ petition was disposed of
by an order of even date with the following observations :-
9. Insofar as the prayer made in this writ petition is concerned, it prima facie
appears that the lease period of the original seven years' lease granted for the fishery
referred above to the respondent no. 7 had expired on 21.05.2020. The lease was
extended on 20.07.2020 for a period of 3 [three] years w.e.f. 21.05.2020, which has
expired on 21.05.2023. Therefore, the unhesitant view of the Court is that the natural
consequences of expiry of the extended period of lease would be to put the fishery to a
fresh auction/sale. Therefore, this is a fit and proper case where the Director of
Fisheries as well as Joint Secretary to the Govt. of Assam, Fisheries Department
[respondent no. 2] is directed to take a decision as to whether there is lawfully any
scope for an extension of lease in favour of the respondent no.7 and/or whether it
could be lawful to put the fishery into sale/auction. The decision in this regard shall
be taken within a outer period of 10 [ten] days from the date of service of certified
copy of this order on the respondent no.2.
10. It shall be incumbent on the said authorities to communicate its decision to the
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petitioner in its e-mail address to be provided while submitting the certified copy of
this order.
11. Before parting with the records, it is once again made clear that the
consideration for decision on auction/sale or extension of the lease shall be within the
parameters which are set out in the Assam Fishery Rules, 1953.
2.3. From a perusal of the order dated 30.06.2023 [supra] passed in the writ petition, W.P.[C]
no. 3902/20223, it is noticed that the Court before making the observations, had referred to
another judgment and order passed in a writ petition, W.P.[C] no. 1174/2021 [Joydeb Das vs.
State of Assam and others] decided on 19.05.2022, wherein, it was observed that extension of
lease after expiry of lease was beyond the competence and jurisdiction of the authority.
Subsequent to the disposal of the writ petition, W.P.[C] no. 3902/2023, the State Government in
the Fishery Department has passed the impugned order dated 13.07.2023 wherein by taking note
of all the previous events, it has been decided that there is no justifiable ground to grant further
extension under Rule 8 of the Assam Fishery Rules, 1953 and the prayer of the petitioner society
for extension has been rejected. The Deputy Commissioner, Morigaon has thereby been directed
to take over possession of the Fishery from the petitioner society and keep it khas till next regular
settlement.
2.4. The case of the petitioner herein is that it had dug the Fishery after being granted
permission in March, 2023 and incurred expenditure of about Rs. 22 lakhs. The instant writ
petition has been preferred challenging the order dated 13.07.2023.
3. The respondent Fishery Department has filed an affidavit in deference to the order dated
31.07.2023 passed by this Court. A stand has been taken in the said affidavit to the effect that
the permission granted to the petitioner society vide order dated 10.03.2021 was with a condition
that the permission would not give any right to the petitioner society for extension/remission in
the Fishery in future. The petitioner society for the purpose of claiming extension of the period of
settlement, has referred to a report of the District Fishery Development Officer, Morigaon dated
04.07.2023, addressed to the Director of Fisheries, Assam. On perusal of the impugned order
dated 13.07.2023, it is noticed that the said order has been passed after receipt and consideration
of reports from the Deputy Commissioner, Morigaon and the factual report from the Director of
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Fishery, Assam dated 06.07.2023 along with the enquiry report of the District Fishery
Development Officer, Morigaon dated 04.07.2023.
4. The matter of claim incurring expenditure in digging the Fishery would require further
examination.
5. Issue notice, returnable in 4 [four] weeks.
6. As all the respondents have appeared and accepted notices through their learned counsel,
no formal notice need to be issued to the respondents. The learned counsel for the petitioner
shall furnish requisite nos. of extra copies of the writ petition along with the annexures each, to
the learned counsel for the respondents within 2 [two] working days from today.
7. Ms. Devi, learned counsel for the petitioner has sought for 2 [two] weeks' time to file an
affidavit-in-reply to the affidavit-in-opposition filed by the respondent nos. 1 & 2. Mr. Hussain,
learned counsel for the respondent no. 5 has also sought 2 [two] weeks' time to file affidavit.
8. In so far as the extension of the order of status-quo passed on the previous date,
02.08.2023 is concerned, this Court in view of the above fact situation obtaining in the case, is of
the considered view that the petitioner has not been able to make out a prima facie case for
extension of such order of status-quo, more particularly, for the fact that the petitioner society
has already run the Fishery for a period of 10 [ten] years and in view of the observations made in
the order dated 30.06.2023 passed in the writ petition, W.P.[C] no. 3902/2023. Accordingly, the
order of status-quo passed in the interim by order dated 02.08.2023, is recalled.
9. List the case after 4 [four] weeks.
10. The name of Standing Counsel, Fishery Department be reflected in the respondents' side in
the cause-list.
JUDGE
Comparing Assistant
