M/S Baghpori Maimal Meen Samabay ... vs The State Of Assam And 3 Ors
2023 Latest Caselaw 3578 Gua

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GAHC010200672023




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

                                 Case No. : WP(C)/5210/2023

            M/S BAGHPORI MAIMAL MEEN SAMABAY SAMITY
            A REGISTERED FISHERY CO-OPERATIVE SOCIETY VIDE REGISTRATION
            NO. M1/1978-79, HAVING ITS REGISTERED OFFICE AT VILL- BAGHPORI,
            P.O.-MANGALDOI, DIST- DARRANG, ASSAM, REPRESENTED BY ITS
            PRESIDENT, MD. KAJIMUDDIN, 65 YEARS



            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
            GOVERNMENT OF ASSAM, FISHERY DEPARTMENT, DISPUR, GUWAHATI-6

            2:THE JOIN SECRETARY TO THE GOVERNMENT OF ASSAM
             FISHERY DEPARTMENT
             DISPUR
             GUWAHATI-781006

            3:DEPUTY COMMISSIONER
             DARRANG
             P.O.-MANGALDAI

            4:M/S SREEGANGA FISHERMAN SAMABAI SAMITY LTD.
             HAVING ITS OFFICE AT P.O. AND P.S.-KHARUPETIA
             DIST-DARRANG
            ASSAM
             PIN-784115 REPRESENTED BY ITS SECRETARY SRI SANJAY DA

Advocate for the Petitioner   : MR. M NATH

Advocate for the Respondent : GA, ASSAM
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                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                     ORDER

Date : 08.09.2023

Heard Mr. M. Nath, learned Senior Counsel assisted by Mr. D.P. Bora, learned counsel for the petitioner; Mr. S.S. Roy, learned Junior Government Advocate, Assam for the respondent nos. 1 - 3; and Mr. K. Singha, learned counsel for the caveator/respondent no. 4.

2. The fishery named 'No. 2 Sootea Brahmaputra Min Mahal' ['the Fishery', for short] is a 60% category fishery situate in District - Darrang.

3. The petitioner society is a fishery cooperative society registered under the provisions of Assam Cooperative Societies Act. It has been stated that its members are 100% actual fishermen belonging to Maimal fishermen community belonging to the erstwhile Cachar District. It has been canvassed that earlier, a challenge was made to the effect that since the petitioner society being a society from Darrang district comprising of members belonging to Maimal community, it was not eligible to be settled with a 60% category fishery located in Darrang district on the ground that the members of the petitioner society though belong to Maimal fishermen community of the erstwhile Cachar district, would not be eligible to be granted settlement under Rule 12 of the Assam Fishery Rules, 1953 in a district other than the erstwhile Cachar district. It is projected that the litigation ensued on that ground had resulted and culminated in a judgment dated 02.06.2016 of a Division Bench of this Court in a writ appeal, W.A. no. 347/2013 wherein it has inter alia been held that the petitioner society is eligible to participate in bidding processes undertaken for settlement Page No.# 3/6

of 60% category fisheries, more particularly, the Fishery in question.

3.1. In the year 2013, a bidding process was undertaken for settlement of the Fishery for a period of 7 [seven] years. The Fishery came to be settled finally in favour of the petitioner society for a period of 7 [seven] years by an order of settlement dated 27.06.2016. The said settlement period expired on 05.07.2003.

3.2. During the said settlement period of 7 [seven] years when the petitioner society was operating the Fishery, about 80% area of the Fishery got included in

the 2nd addition of the extended Orang National Park pursuant to a Gazette Notification dated 25.08.2022. As a result, there has been shrinkage in the area of the Fishery from its original area and at present, the Fishery is being operated from an area of about 20% of the original area of the Fishery.

3.3. Pursuant to a joint verification undertaken by the respondent authorities, a decision has been taken to undertake regular settlement of the Fishery with 20% area of the original Fishery area, after assessing the annual revenue of the Fishery under Rule 48 of the Assam Fishery Rules, 1953. As on date, the said process is not complete.

3.4. It is projected that as the period of settlement of the Fishery expired on 05.07.2023 and the process of assessing the annual revenue of the Fishery under Rule 48 of the Assam Fishery Rules, 1953 is not complete, the Fishery had been allowed to run by the petitioner society by an Order dated 22.06.2023 of the Deputy Commissioner, Darrang [the respondent no. 3] on daily basis @ Rs. 2100/- per day. It is stated that the petitioner society after the said order dated 22.06.2023, was operating the Fishery by duly depositing the revenue on daily basis. The petitioner society is aggrieved by an impugned order dated Page No.# 4/6

01.09.2023 passed by the respondent no. 2 whereby the Fishery has been allowed to operate by the respondent no. 4 on daily basis @ Rs. 3,000/- per day.

4. Mr. Nath, learned Senior Counsel for the petitioner has submitted that during the 7 [seven] years period of settlement, the petitioner society had duly submitted the requisite revenue to the State Exchequer. Even when the petitioner society was allowed to operate the Fishery on daily basis, the petitioner society was regularly depositing the daily revenue. But all of a sudden, the impugned order has been passed whereby the respondent no. 4 society has been allowed to operate the Fishery on daily basis at a daily revenue of Rs. 3,000/-. It is submitted that there was no prior consideration as to whether the respondent no. 4 society is eligible to operate a 60% category Fishery. It is contended that in the absence of such consideration, the impugned order which has been passed in violation of the principles of natural justice and behind the back of the petitioner society, is not sustainable in law. Mr. Nath has further submitted that had any proposal been given to the petitioner society to increase the daily revenue, the petitioner society could have responded to it by offering a daily revenue matching with the daily revenue or even higher than it at which the Fishery has been allowed to operate by the impugned order dated 01.09.2023.

5. Mr. Singha, learned counsel for the caveator/respondent no. 4 has submitted that a writ petition as regards the eligibility of the petitioner society to be settled with any 60% category fishery is pending before this Court.

6. Mr. Roy, learned Junior Government Advocate, Assam has submitted that he requires some time to obtain up-to-date instructions.

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7. The matter would require further consideration.

8. Issue notice, returnable on 06.10.2023.

9. As all the respondents are represented by their respective learned counsel, no formal notices need to be issued to the said respondents. The petitioner shall, however, furnish requisite nos. of extra copies of the writ petition along with annexures, to Mr. Roy and Mr. Singha within 2 [two] working days from today.

10. A perusal of the impugned order dated 01.09.2023 [Annexure-7] does not prima facie go to indicate that there was any prior consideration on the part of the respondent authorities in the Fishery Department on the aspect of eligibility or otherwise of the respondent no. 4 society to be settled with a 60% category Fishery either on regular basis or on daily basis. On the other hand, it appears prima facie from the above facts that the petitioner society had earlier been settled with the Fishery for a period of 7 [seven] years and there was no default on the part of the petitioner society in depositing the revenue to the State Exchequer, it is eligible to be settled with a 60% category and it was not provided any prior opportunity of hearing on the enhancement of daily revenue. Though earning of higher revenue is one of the relevant factors, it cannot be the sole relevant factor in matters relating to distribution of State largesses, more particularly, in a matter relating to settlement of a 60% category fishery.

11. Having considered all the factors, this Court is of the considered view that the petitioner society has been able to make out a prima facie case that a similar opportunity like the one given to the respondent no. 4 society, as regards the daily revenue, should have been given also to the petitioner society prior to Page No.# 6/6

passing of the impugned order dated 01.09.2023. In such view of the matter, it is observed that till the returnable date, the impugned order dated 01.09.2023 shall remain suspended.

JUDGE

Comparing Assistant