Gauhati High Court
WA/348/2022 on 6 May, 2024
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/9
GAHC010231552022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
(1) Writ Appeal No.366/2022
Nisar Ahmed,
Son of Late Sajfar Ali,
Resident of Village-Nalua, P.O-Jalal Nagar TE, Karimganj
District, Assam, PIN-788712.
......Writ Appellant
-Versus-
1. The Assam Fisheries Development Corporation Ltd.,
being represented by its Managing Director, Chachal, VIP
Road, Guwahati-781036, Kamrup (Metro) District,
Assam.
2. The Chairman, Assam Fisheries Development
Corporation Limited, Chachal, VIP Road, Guwahati-
781036, Kamrup (Metro) District, Assam.
3. The Assistant Project Manager, Barak Valley Region,
Assam Fisheries Development Corporation Limited,
Silchar-09.
...... Respondents
(2) Writ Appeal No.348/2022
1. Sri Dharani Das,
Son of Late Chanaram Das,
Resident of Village- Kanidol,
P.O. Khandajan, District- Darrang,
P.S.- Sipajhar, Assam.
2. Sri Gajen Das,
Son of Late Devi Ram Das,
Page No.# 2/9
Village- Kanidol, P.O.-Khandajan, PIN-784145, P.S.-
Sipajhar, Darrang District, Assam.
......Writ Appellants
-Versus-
1. The Assam Fisheries Development Corporation
Limited, being represented by its Managing Director,
Bimala Prasad Chaliha Road, Chachal, VIP Road,
Guwahati-781036, Kamrup (Metro) District, Assam.
2. The Chairman, Assam Fisheries Development
Corporation Limited, Bimala Prasad Chaliha Road,
Chachal, VIP Road, Guwahati-781036, Kamrup (Metro)
District, Assam.
3. The Managing Director, Assam Fisheries Development
Corporation Limited, Bimala Prasad Chaliha Road,
Chachal, VIP Road, Guwahati-781036, Kamrup (Metro)
District, Assam.
4. The Project Manager, Upper Assam & Middle Assam
Zone, Assam Fisheries Development Corporation Limited,
Darrang and Kamrup District, PIN-784125, Darrang
District, Assam.
5. Sri Subrata Sarkar,
Son of Kalipad Sarkar,
Resident of Village No.2 Ghataraag, P.O.-Garukhuti, P.S.-
Mangoldoi, District- Darrang (Assam), PIN-784145.
...... Respondents
(3) Writ Appeal No.349/2022
Sunil Hazarika,
Son of Late Bhupen Hazarika,
Resident of Village-Tetelichara, P.O.-Tetelichara, Kamrup,
Nagaon District, Assam, PIN-782426.
......Writ Appellant
-Versus-
1. The Assam Fisheries Development Corporation
Limited, being represented by its Managing Director,
Bimala Prasad Chaliha Road, Chachal, VIP Road,
Guwahati-781036, Kamrup (Metro) District, Assam.
Page No.# 3/9
2. The Chairman, Assam Fisheries Development
Corporation Limited, Bimala Prasad Chaliha Road,
Chachal, VIP Road, Guwahati-781036, Kamrup (Metro)
District, Assam.
3. The Managing Director, Assam Fisheries Development
Corporation Limited, Bimala Prasad Chaliha Road,
Chachal, VIP Road, Guwahati-781036, Kamrup (Metro)
District, Assam.
4. The Project Manager, Upper Assam & Middle Assam
Zone, Assam Fisheries Development Corporation Limited,
Nagaon District.
5. Sri Rakhal Chandra Das,
Son of Late Khitish Das,
Resident of Village No.2 Garumara, P.O.-Rangagorah,
P.S.-Chamuguri, District-Nagaon (Assam), PIN-782140.
...... Respondents
(4) WP(C) No.8169/2022
Aquaculture Development Organization for SC, ST and
Backward Classes, Assam, a registered Non Government
Organization, having its head office at R.G. Baruah Road,
Guwahati-781003, District-Kamrup (M), Assam.
.......Petitioner
-Versus-
1. The Assam Fisheries Development Corporation
Limited, being represented by its Managing Director,
Bimala Prasad Chaliha Road, Chachal, VIP Road,
Guwahati-781036, Kamrup (Metro) District, Assam.
2. The Chairman, Assam Fisheries Development
Corporation Limited, Bimala Prasad Chaliha Road,
Chachal, VIP Road, Guwahati-781036, Kamrup (Metro)
District, Assam.
3. The Managing Director, Assam Fisheries Development
Corporation Limited, Bimala Prasad Chaliha Road,
Chachal, VIP Road, Guwahati-781036, Kamrup (Metro)
District, Assam.
Page No.# 4/9
4. The Project Manager, Middle Assam Region, Assam
Fisheries Development Corporation Limited, Charan Beel,
Morigaon District, Assam, PIN-782105.
5. The Asstt. Beel Manager, Middle Assam Region, Head
Quarter Charan Beel, District-Morigaon, Assam, PIN-
782105.
...... Respondents
- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE SUMAN SHYAM
For the Appellant(s)/Petitioner : Mr. S. Khound, Advocate in WA No.366/2022.
: Mr. M.K. Choudhury, Senior Advocate assisted by Mr.
D.J. Medhi, Advocate in WA No.348/2022, WA
No.349/2022 and WP(C) No.8169/2022.
For the respondent(s) : Mr. P. Sharmah, Standing Counsel, AFDC.
: Ms. K. Bhattacharyya, Advocate for respondent No.5 in
WA No.348/2022.
: Mr. B.D. Das, Senior Advocate assisted by Mrs. R. Deka,
Advocate for respondent No.5 in WA No.349/2022.
Date of Hearing : 30.04.2024.
Date of Judgment : 06.05.2024.
JUDGMENT & ORDER (CAV)
[Vijay Bishnoi, CJ]
The instant writ appeals, i.e. WA No.366/2022, WA No.348/2022 and
WA No.349/2022 are filed by the appellants/writ petitioners assailing the
judgment and order dated 21.09.2022, passed by the learned Single Judge in
WP(C) No.2192/2022 and other connected writ petitions, whereby the learned
Single Judge has dismissed the writ petitions.
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2. WP(C) 8169/2022 has been tagged with the present appeals pursuant
to the order dated 19.12.2022 passed by the learned Single Judge in the said
writ petition, which reads as under:
"After hearing the submission of learned counsel for both sides, this
Court is of the prima facie opinion that the central issue involved in this
proceeding has already been decided by a coordinate Bench in favour of the
AFDC and the writ appeal preferred against the judgment of the learned
Single Judge is pending before the Division Bench. Therefore, it would be
improper for this Court to proceed in the matter and adjudicate upon the
same issue.
Under the circumstances, the only recourse that appears to be
available to this Court would be to direct this writ petition to be tagged with
W.A. No. 348/2022.
Ordered accordingly.
Registry to list the matters together."
Accordingly, WP(C) 8169/2022 is taken up for consideration along with
the present appeals.
3. The brief facts of these appeals are that the Assam Fisheries
Development Corporation Limited (in short, AFDC) has settled various beels/
fisheries in the State of Assam with the appellants in the year 2020 and 2021.
However, on 08.04.2022, all those settlements made by the AFDC with the
appellants have been cancelled.
4. Being aggrieved with the same, the appellants have approached this
Court by way of filing separate writ petitions which came to be dismissed by the
learned Single Judge vide impugned judgment dated 21.09.2022. Hence, these
writ appeals.
5. The question which comes for consideration before the learned Single
Judge was whether the settlement of fisheries in favour of the appellants by the
AFDC was in accordance with law or not.
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The learned Single Judge, while relying on the decision of the Full
Bench of this Court rendered in M/s.129 Haria Dablong Min Mahal
Samabai Samity Ltd & etc. Vs. Assam Fisheries Development
Corporation Ltd. & Ors., AIR 2001 Gau 139 has held that the AFDC has no
authority to settle the fisheries in favour of the appellants and therefore, the
cancellation of the said settlements cannot be said to be arbitrary and illegal.
The learned Single Judge has held that the action of the AFDC of settling the
fisheries in favour of the appellants was in gross violation of Article 14 of the
Constitution of India. Relying on the provisions of Rule 8 as well as Rule 12 of
the Assam Fisheries Rules, 1953, the learned Single Judge has held that the
AFDC has no authority to settle the fisheries in favour of the appellants and as
such, the settlements made in favour of the appellants of the various fisheries
have rightly been cancelled.
Rejecting the arguments made on behalf of the appellants that before
cancellation of the settlement, no opportunity of hearing was provided to them,
the learned Single Judge has held that providing an opportunity of hearing to
the appellants would be a useless formality.
6. Learned counsel appearing for the appellants has argued that the
learned Single Judge has erred in dismissing the writ petitions filed by the
appellants without taking into consideration the fact that the AFDC has settled
the various fisheries in favour of the appellants by executing a contract and they
have invested huge amounts in operating the fisheries.
7. It is contended that before cancellation of the settlement, no
opportunity of hearing was provided to the appellants and as such, the principle
of natural justice has not been followed. It is further contended that the AFDC
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has full authority to settle the fisheries in favour of the appellants without
inviting tenders as per the provisions of Assam Fisheries Rules. It is, therefore,
prayed that the impugned judgment passed by the learned Single Judge is liable
to be set aside and the writ petitions filed by the appellants are liable to be
allowed.
8. Per contra, learned counsel appearing for the respondent State as well
as the private respondents have opposed the writ appeals and have argued that
there is no illegality in the judgment passed by the learned Single Judge and as
no case for interference is made out and accordingly, the writ appeals are liable
to be dismissed.
9. Heard the learned counsel appearing for the parties and also perused
the material available on record.
10. It is not in dispute that the fisheries which were settled in favour of the
appellants by the AFDC were vested in it. However, the issue that whether the
AFDC has the power to make any direct settlement of fisheries with the
individuals is no more res integra and has already been answered by the Full
Bench of this Court in Haria Dablong Min Mahal Samabai Samity Ltd.
(supra).
The Full Bench of this Court in Haria Dablong Min Mahal Samabai
Samity Ltd. (supra) has held as under:
"The question that needs for determination is whether by virtue of Rule 8(ii)
whether any powers have been conferred on the AFDC to settle the
Fisheries which were transferred to it. Referring to Rule 8(i) it is submitted
that the Director of Fisheries have been merely empowered to call tenders
and submit their recommendations to the Govt. for approval. Admittedly
under the above rule no power has been vested with the Director of
Fisheries to make any settlement. He has been given the power to invite
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tenders and submit his recommendation only."
.........................
"15. Now regarding the application of the fishery Rules in the matter of
settlement by AFDC, we hold that although AFDC is a State under Article 12
of the Constitution and it is 100% Govt. enterprises, the provisions of the
Assam Fishery Rules are not applicable in the matter of settlement to be
made by the AFDC. Thus the AFDC does not have the power to make any
direct settlement of fisheries as the state has got in view of the proviso to
Rule 12 of the Assam Fishery Rules."
After observing as such, the Full Bench has answered the question
referred to it as under:
"1) Assam Fisheries Development Corporation has the sole authority and
jurisdiction to lease out/settle the fisheries which have been transferred or
vested with them under Rule 8(c)(ii) if the Assam Fishery Rules;
2) The AFDC shall have no power to make any direct settlement as per the
proviso to Rule 12 of the Assam Fishery Rules. The Director of the AFDC
shall have the authority to make settlement and for that purpose definite
guidelines may be laid down so that there is transparency in the matter of
settlement. The need for transparency, need not be reemphasized in view of
the catena of decisions of the Apex Court on the point.
3) While laying down the guidelines or resolutions the spirit of the Fishery
Rules may be given due weightage/consideration. Fishery Rules were
enacted to provide stimulus the fish production and help the population
which is engaged with the occupation of fishing. Under the Fishery Rules
preference is given to the co-operative societies formed by 100% fisherman
belonging to Scheduled Caste community and Mainao Community of Cachar.
Hence the AFDC is directed to lay down the definite guidelines in the matter
so that there is no ambiguity.
4) As the AFDC has been found to have powers to make settlement in
respect of the fisheries vested with them they have implied power to pass
orders regarding extension of the settlement. We may however like to add
here that extension of fisheries creates unnecessary problems and as such
definite criteria or parameter may be laid down or some alternative may be
found out to give relief to the lessee in proper and suitable cases.
5) During the course of hearing copies of the resolutions adopted by the
AFDC in its meeting dated 3-1-1994 were produced before us and the said
resolution provided that the settlement is to be made for a period of ranging
from 5 to 10 years and it should be by way of tender only and that too, to
the highest bidder."
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11. In view of the authoritative pronouncement of the Full Bench of this
Court in Haria Dablong Min Mahal Samabai Samity Ltd. (supra), we have
no hesitation in holding that the AFDC has no power of direct settlement of
fisheries and therefore, the settlement of the fisheries in favour of the
appellants, without calling for the tenders, was illegal.
12. So far as the question of cancellation of the fisheries settled in favour
of the appellants without providing an opportunity of hearing to them is
concerned, we find it as a futile exercise because the appellants have failed to
make out a case before this Court that the AFDC has rightly settled the fisheries
in their favour and we are of the firm opinion that the settlement of the fisheries
in their favour was illegal and void ab initio. Providing an opportunity of hearing
to the appellants would be nothing but a futile exercise.
13. In view of the above discussion, we do not find any merit in these writ
appeals (WA No.366/2022, WA No.348/2022 & WA No.349/2022) and the same
are, therefore, dismissed.
14. Resultantly, the instant writ petition [WP(C) No.8169/2022] also stands
dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
