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Arabinda Das and Etc. Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Rules Nos. 174 and 175 of 1980
Judge
ActsAssam Fishery Rules, 1953 - Rules 8, 12, 42, 43 and 45; Assam Fishery (Amendment) Rules, 1976; Constitution of India - Articles 14 and 245; Assam Land and Revenue Regulation, 1896 - Regulations 16 and 115
AppellantArabinda Das and Etc.
RespondentState of Assam and ors.
Appellant AdvocateJ.P. Bhatacharjee, S.N. Medhi and U. Baruah, Advs.
Respondent AdvocateA.K. Phukan, Govt. Adv., D.N. Choudhury, B.M. Goswami and U.C. Das, Advs.
DispositionPetition dismissed
Prior history
Pathak, C. J. (Acting)
1. By these petitions under Article 226 of the Constitution of India, the petitioners have challenged the W/T message dated 22-2-80 issued by the Fishery Department of the Government of Assam with Memo No. VFF. 465/79/134-A dated 22-2-80 under the signature of the Deputy Secretary to the Government of Assam, Fisheries Department directing all Deputy Commissioners and Sub-Divisional Officers not to open the tenders received by them or to make settlement of the fishery
Excerpt:
- - ' rule 191 -fisheries should be settled to the best advantage but, subject to this condition, the agency of middlemen as lessees should be done away with as far as possible. 46. fisheries shall be settled to the best advantage and subject to this condition the agency of middlemen as lessees shall be done away with as far as possible, (i) co-operative fishery societies formed by actual fishermen of the scheduled caste and registered under the indian co-operative societies act, and (ii) individual actual fisherman of the scheduled caste shall be given preference, in the order stated above, in the matter of settlement of fisheries, provided their tender is not below an amount which is less than the highest tender by only 10 per cent; 48. fisheries shall be settled to the best..... pathak, c. j. (acting) 1. by these petitions under article 226 of the constitution of india, the petitioners have challenged the w/t message dated 22-2-80 issued by the fishery department of the government of assam with memo no. vff. 465/79/134-a dated 22-2-80 under the signature of the deputy secretary to the government of assam, fisheries department directing all deputy commissioners and sub-divisional officers not to open the tenders received by them or to make settlement of the fishery without prior clearance from the government. 2. the facts leading to the present petitions converge on a very narrow compass. the petitioners in both the petitions are members of the scheduled caste and belong to kaivarta family selling fish in the market and dealing in fishery business. the deputy.....
Judgment:

Pathak, C. J. (Acting)

1. By these petitions under Article 226 of the Constitution of India, the petitioners have challenged the W/T message dated 22-2-80 issued by the Fishery Department of the Government of Assam with Memo No. VFF. 465/79/134-A dated 22-2-80 under the signature of the Deputy Secretary to the Government of Assam, Fisheries Department directing all Deputy Commissioners and Sub-Divisional Officers not to open the tenders received by them or to make settlement of the fishery without prior clearance from the Government.

2. The facts leading to the present petitions converge on a very narrow compass. The petitioners in both the petitions are members of the Scheduled Caste and belong to Kaivarta family selling fish in the market and dealing in fishery business. The Deputy Commissioner of Dibrugarh issued a notice of sale of fisheries of the Dibrugarh District on 12-2-80 inviting lenders on or before 20-3-80 for settlement of as many as six registered fisheries for the period of 3 years with effect from 1-4-80 to 31-3-83. In pursuance of the aforesaid sale notice, Arabinda Das, petitioner in Civil Rule No. 174 of 1980 submitted a valid tender enclosing all necessary documents as required under the terms and conditions of the sale notice by offering a sum of Rs. 75,251/- as annual revenue on 20-3-80 for the settlement of Nerlogonakhona Fishery. Similarly Tapasilal Das, petitioner in Civil Rule No. 175/80 submitted a valid tender enclosing all necessary documents as required under the terms and conditions of the said sale notice by offering a sum of Rs. 11,101/- as annual revenue on 20-3-80 for the settlement of Gorudhoria Fishery. It is stated by the petitioners that they made enquiries after submitting their tenders on 20-3-80 in the office of the Deputy Commissioner as to when the tenders would be opened and the settlement would be made. Subsequently on 29-3-80 the petitioners came to learn that the Fishery Department of State Government have given some instructions to the Deputy Commissioner directing him not to open tenders submitted by different tenderers for settlement of the fishery as notified by the sale notice dated 12-2-80 and to make settlement of such fisheries on the basis of such tenders without prior clearance from the Government. It is further stated that on enquiry it was found that the Government of Assam in the Fisheries Department had issued a W/T message which is impugned in these petitions as noticed above and by which all the Deputy Commissioners and the Sub-Divisional Officers have been directed not to open tenders and to make settlement of the fishery without prior clearance from the Government. The said W/T message is set out hereunder in extenso:

'Dated Dispur the 22nd February/80.

FROM FISHASSAH TO ALL DEPOOM/SUB-DIVISIONAL

No. VFF. 46579134 (.) REF OUR W. T. No. VFF. 46579105 of fifth ultimo regarding settlement of fisheries from 1-4-90 (.) petitions for direct settlement on extension of leases have/are being received in this department (.) these petitions have been/are being sent to you for immediate report (.) petitions for direct settlement/ extension might have been received by you direct for obtaining Govt. approval (.) in such cases as referred to above the fisheries concerned should not be settled although you may issue sale notice inviting tenders for the fisheries concerned (.) if tenders received in respect of fisheries referred to above the tenders should not be opened or settlement orders passed without prior clearance from Govt. (.) please send reports on all such petition/immediately (.) please report compliance (.)'

3. Before adverting to the rival contentions of the parties, we may at this stage refer to some of the relevant provisions of the Fishery Rules in order to appreciate their contentions and submissions.

It has rightly been observed in the State of Assam v. Keshab Prasad Singh, AIR 1953 SC 309 by their Lordships of the Supreme Court that -- Assam is blest with fisheries which are under the control of and belong to the State Government. Periodically the fishing rights are leased out to licensees and the State derives considerable revenue from this source. So valuable are these rights that as long ago as 1886 it was considered undesirable to leave such a lucrative source of revenue to the unfettered discretion and control of either the Provincial Government or a single individual, however eminent.

4. Accordingly, legislation was enacted and Regulation I of 1886 (The Assam Land and Revenue Regulation, 1886), for short 'the Regulation', was passed into law. A Register of Fisheries had to be kept and the Deputy Commissioner was empowered, with the previous sanction of the Chief Commissioner (late Provincial Government), to declare any collection of water to be a fishery. Once a fishery was so declared no person could acquire fishing rights in it except as provided by Rules drawn up under Section 155 of the Regulation. Even prior to the commencement of the Constitution, prescribed fisheries in Assam were lifted out of the realm of matters which could be disposed of at the executive discretion of either Government or officials and were placed under statutory regulation and control by Sections 16 and 155 of the Regulation under which a set of Rules was framed for the settlement of fishery. It follows that no fishery could be 'settled' except in accordance with those Rules. The following are the relevant Rules as obtained at that time:

'Rule 190-A No fishery shall be settled otherwise than by sale as provided in the preceding instructions except with the previous sanction of the Provincial Government.'

'Rule 191 -- Fisheries should be settled to the best advantage but, subject to this condition, the agency of middlemen as lessees should be done away with as far as possible. To effect this the fishery area should be broken up into blocks of such size that the actual fishers may be able to take the lease, which should be given, for preference, to the riparian land occupants or to the actual fishermen. The endeavour of the District Officer should be to do away with the middlemen by finding out who the sublessees are and trying to come to terms with them.'

5. On consideration of the above set of Rules their Lordships of the Supreme Court have observed in Keshab Prasad Singh (AIR 1953 SC 309) (supra) in the following terms:--

'Now as we have seen prescribed fisheries in Assam were lifted out of the realm of matters which could be disposed of at the executive discretion of either Governments or officials and were placed under statutory regulation and control by Sections 16 and 155, Assam Land and Revenue Regulation of 1886; and we have already referred to the elaborate set of Rules which were drawn up in pursuance of that Regulation. It follows that no fishery can be a settled except in accordance with those Rules.'

The ratio of that decision is that when Rules are prescribed for the settlement of fishery the authority prescribed under the Rules must follow those Rules for settling the fishery by the authorities prescribed in accordance with Rules and the settlement has not been left in the hands of the Government to settle it according to its own caprice and whims.

The main purpose of settling the fisheries by the State was to derive revenue by the State and therefore prior to the commencement of the Constitution the State Government tried to get as much revenue as it could by sale of the fisheries by auction system. The main thrust then was for the collection of as much revenue as it could for the State exchequer. But after the commencement of the Constitution State has given thought not only to derive revenue but also to help the weaker section of the society, namely, Scheduled Castes and the Scheduled Tribes by enacting a frash set of Rules, so that settlement of fisheries could be given to the actual fishermen by profession.

Section 16 of the Regulation empowers the Deputy Commissioner with the previous sanction of the State Government to declare by proclamation any collection of water, running or still, to be a fishery. It has been further provided by the section that no right in any fishery so declared shall be deemed to have been acquired by the public or any person either before or after the commencement of the Regulation, except as provided in the Rule made under Section 155.

Section 155 of the Regulation provides for framing of Rules for the purpose of settlement of fisheries and ancillary matters thereto. In 1953 a fresh set of Rules were framed under Section 16 read with Section 155 of the Regulation. These Rules are called the Assam Fishery Rules 1953 (for brevity the Rules). Now we may notice some of the following relevant rules which are necessary for consideration for the purpose of deciding these cases,

'8. Confirmation of sale,-- All sales of fisheries in a district shall be reported to the Commissioner of Plains Division for approval in Form No. 100 of the Assam Land Revenue Manual, Volume II.'

'12. No fishery shall be settled otherwise than by sale except by the State Government. The order of Settlement passed by the State Government shall be final.

Provided that the State Government may introduce the tender system of settlement of fisheries in place of sale by auction system whenever it is considered necessary.''

'13. Settlement of fisheries with Cooperative Societies.-

(a) Registered Co-operative Fishery Societies formed by actual fishermen of

the Scheduled Caste and individual actual fisherman of the Scheduled Caste, giving substantial bid in the sale, shall be given the option of taking settlement of fisheries at the highest bid in order of preference as stated above.

(b) When a fishery bid value of which does not exceed Rs. 20,000 (Rupees twenty thousand) is settled with anyone falling within one of the above two categories the lessee shall get a rebate of 10 per cent as concession.

Note. 1. By 'actual fisherman of the Scheduled Caste' is meant fisherman by profession and not fisherman by Caste alone.

Note. 2. The 10 per cent rebate concession will be withdrawn at any time when circumstances so demand.

Note 3. 'Substantial bid' means any bid representing 60 per cent or above of the highest bid.'

'42. The Government may from time to time select any fishery or fisheries to be settled by tender system and instruct Deputy Commissioner or the Sub-divisional Officer to lease them out for any specified periods.

'43. On receipt of Government's instruction in any particular year the Deputy Commissioner or the Sub-divisional Officer shall fix a date not later than the 5th February, on which the settlement of the registered fisheries selected by Government will be made by him after calling for tenders from the public. The date fixed shall be proclaimed by the Deputy Commissioner or Sub-divisional Officer at least a month in advance by a written notice in the form in Appendix. A posted at the Sadar and Sub-divisional Cutchery and at the Munsiff and Police Station within the local limits of which the fishery or any part of it is situated. The notice shall state the name of the fishery, the mauza or pargana within which it is situated and any other particular that may be necessary for its identification, the term and price for which it was last settled, the term for which it will now be settled and the date, place and conditions of settlement. The contents of the notice should also (if possible) be made known by beat of drum at the bazar nearest to the fishery.

'44. The place of settlement shall be the Sub-divisional Cutchery for fisheries lying within an outlying subdivision of a district and the Sadar Cutchery of the

district for those in the headquarters subdivision.

'45. The Deputy Commissioner or the Sub-divisional Officer, as the case may be, shall open the tenders in the presence of an Advisory Board consisting of not less than 5 persons called at the moment and in consultation with that Board make a selection of the most suitable tender and submit the proposal for settlement to the Commissioner of Plains Division for sanction. The selection of members of the Board shall be strictly confidential.

'46. Fisheries shall be settled to the best advantage and subject to this condition the agency of middlemen as lessees shall be done away with as far as possible, (i) Co-operative Fishery Societies formed by actual fishermen of the Scheduled Caste and registered under the Indian Co-operative Societies Act, and (ii) individual actual fisherman of the Scheduled Caste shall be given preference, in the order stated above, in the matter of settlement of fisheries, provided their tender is not below an amount which is less than the highest tender by only 10 per cent; provided further that this monetary concession is limited to fisheries whose value does not exceed Rs. 20,000.

'Provided further that when the same Co-operative Fishery Society formed by the actual fishermen of the Scheduled Caste or the same individual actual fishermen of the Scheduled Caste, offers tenders for more than one fisheries, the 10 per cent concession allowable should be restricted to one fishery only.'

From a survey of the above Rules of 1953 it is found that the normal procedure for settlement of fishery prescribed in Rule 3 of Section I is by auction-sales in regard to all registered fisheries held under these Rules expiring on the last day of the current year for which the last previous auctions were reserved for sale under Rule 9. After making provision for the place of sale, execution of leases and confirmation of sale, provision is made in Rule 11 for appeal to the High Court against all orders of the Deputy Commissioner or the Sub-divisional Officer passed under the Rules and it is provided that there shall be no appeal against an order of settlement passed by the State Government. Then follows Rule 12 which provides that no fishery shall be settled otherwise than by sale except by the State Government and a proviso is enacted to this Rule

enabling the State Government to introduce the tender system of settlement of fishery in place of auction system whenever it is considered necessary. Section IV of the Rules contains rules for settlement of Fisheries by Tender System, Rule 42 provides that the Government may from time to time select any fishery or fisheries to be settled by tender system and instruct the Deputy Commissioner to lease them out for a specified period and the procedure adopted for settlement of fisheries by tender system is provided therein.

6. It is seen from the above summary of the relevant Rules that the normal procedure for settlement of fishery is by holding auction sales. However, power is given by the proviso to Rule 12 to the State Government to introduce the tender system of settlement of fishery in place of auction system whenever it is considered necessary and if the Government selects any fishery or fisheries to be settled by tender system and instructs the Deputy Commissioner to lease them out for a specified period ending in exercise of that power. Section IV prescribes the procedure for settlement of fisheries by tender. Reading of Rule 46 shows that the anxiety of the rule making authority was to do away with the agency of middlemen in the matter of settlement of fisheries. The purpose behind is to give preference to the actual fisherman of the Scheduled Castes or to the Cooperative Society formed by actual fishermen of the Scheduled Castes or to the Co-operative Society formed by actual fishermen of the Scheduled Castes and registered under the Indian Co-operative Societies Act.

7. In 1960 in exercise of the powers conferred by Sections 155 and 156 of the Regulation and by Section 6 of the Indian Fisheries Act, 1897 certain amendments were introduced by Gazette Notification No. RGF. 62/57/103 dt. 15-2-1960 by which Rules 13 and 46 were substituted in the following manner:

'13. (a) Co-operative Fishery Societies formed by actual fishermen of the Scheduled Caste and registered under the Assam Co-operative Societies' Act, 1949, shall be given option of taking settlement of fisheries at the highest bid, provided that the bid of such Co-operative Societies is within 7 1/2 per cent of the highest bid.

(b) When the bid of such Co-operative Societies are below 7 1/2 per cent of the

highest bid (i) Co-operative Societies as stated above, (ii) individual members of the Scheduled Tribes and other Backward Classes who may offer a bid not less than 60 per cent of the highest bid, may be given option to take settlement of the fishery at highest bid, in the order of preference stated above, subject to the suitability of the bidder.

(c) When a fishery, the bid value of which does not exceed Rs. 35,000/- is settled with any one falling within one of the categories stated in such Rule (a) or (b) above, the lessee shall get a rebate of 7 1/2 per cent as concession.

(d) Any bidder claiming the concession provided in this rule shall indicate the same in writing to the officer conducting the sale, immediately, before the commencement of the sale,

Note:-- 1. By actual fishermen of Scheduled Caste is meant fishermen by profession and not fishermen by caste alone.

Note:-- 2. A Co-operative Fishery, Society be deemed to be a Society formed by actual fishermen if not less than 80 per cent of the members thereof are actual fishermen of the Scheduled Caste.

Note:-- 3. The list of recognized other Backward Classes in Assam, for the purpose of this Rule, includes-

1. Ahom, 2. Baria, 3. Baroi, 4. Chutia, 5. Ganok, in Cachar only, 6. Kumar, 7. Kupadhar, 8 Mahisya Das, 9. Manipuri, 10. Moran and Mataks, 11. Napit, 12. Nepali (i. e. Thapa, Gurung, Magar, Lama, Newar, Lohar, Gaina, Rai, Chetri, Limbu and Sarki i. e. Cobbler), 13. Prar, 14. Rajbanshi or Koch, 15. Saloi, 16. Sudra Das or Dey, 17. Sut, 18. Tanripal, 19. Tea Garden Tribe i. e. Gondas, Mundals, Khonds, Oraons, Santhals, Sevaras, Pans), 20. Teli, 21. Jogi (Nath), 22. Scheduled Castes converted to Christianity, 23. Sikh Scheduled Castes, 24. Mukhi.

'48. Fisheries shall be settled to the best advantage and subject to this condition, the agency of middlemen as lessee shall be done away with as far as possible,

(a) A Co-operative Fishery Society formed by actual fishermen of the Scheduled Caste and registered under the Assam Co-operative Societies' Act, 1949, shall be given option of taking settlement of fisheries at the highest tender, provided that its tender is not less than 7 1/2 per cent of the highest tenderer.

(b) When the tender of such Co-operative Societies is below 7 1/2 per cent of the highest tender, (i) Co-operative Societies as stated above, (ii) individual members of the Scheduled Caste, (iii) individual members of the Scheduled Tribes and other Backward Classes who may submit tender at not less than 60 per cent of the highest tender may be given option to take settlement of the fishery at the highest tender in the order of preference stated above subject to the suitability of the tenderer.

(c) When a fishery, the tender value of which does not exceed Rs. 35,000/- is settled with anyone falling within one of the categories stated in the Sub-rule (a) or (b) above, the lessee shall get rebate of 7 1/2 per cent as concession.

(d) Any tenderer who claims the concession provided in this Rule shall indicate it in his tender.'

In 1963, there was another amendment of the Rules which was published in the Gazette dated 14-8-1963 by which Rule 8 was deleted and Rule 11 was substituted providing for appeal against the order of the Deputy Commissioner or Sub-Divisional Officer passed under the Rules to the Assam Board of Revenue in place of the High Court.

8. In 1971 a further amendment of the Rules has been introduced and some of the relevant rules which are required for our consideration are:-- Rule 8. This is inserted as a new Rule and the same reads as:

Rule 8 (a) Settling authority-xxxxx

(b) Extension of the term of lease-- (i) Where the period of lease of registered fisheries being ordinarily not less than three years is interfered with, due to any natural cause or for any unavoidable reasons beyond the control of the lessees, Government may extend the period of such lease supported by official reports as to the nature of cause in exceptionally special cases for a reasonable period so as to enable such lessees to make good the loss;

(ii) The State Government may also, on the recommendation of the Director of Fisheries extend the period of lease of a fishery with an intending pisciculturist who should invariably be the sitting lessee and who agrees to accept such an extension at a revenue and for such other additional terms and conditions as may be specified by Government.

Provided that one of the conditions of extension of lease against piscicultural

plan shall invariably be the implementation of approved Scheme or Schemes of Development and improvement of such a fishery at the lessee's own cost within a target period to be fixed by Government.

The orders of extension of lease on the aforesaid grounds, passed by the State Government shall be final and no appeal shall lie against such orders of extension,

(c) and (d) .....

(e) Re-sale of Fisheries.-- When for default kist money or for violation of any of the conditions of the fishery lease including any of the provisions of these Rules by a lessee the fishery shall be put to re-sale under tender system at the risk of original lessee. Notice of re-sale shall be given as in the case of the original sale with the additional proviso that the re-sale shall be at the risk of and on account of the original lessee.

Provided that the question of such re-sale shall not be applicable where State Government permits extension of time for payment of kist money.'

Rule 12 also has been substituted by this amendment and it reads:

'Rule 12. Except those referred to in Sub-rule No. 8. (b) above, all registered Fisheries shall be settled under tender system of sale in place of sale by auction.'

This amendment of Rule 12 shows that the settlement of Fisheries are to be made by tender only and the provisions for the direct settlement by the State which had been in vogue in the Rules framed in 1953 was completely abolished.

But in 1976 by a notification No. VFF. 10/76/Pt.II-A/12 dated 5-6-1976 a proviso has been added to Rule 12 in order to revive the power of the State to settle fisheries directly under certain conditions. The genesis of the incorporation of the proviso to Rule 12 is based on a decision of the State Government taken on 9th. April, 1976 which we had the occasion to notice at page 57 of the Paper Book in Civil Rule No. 216 of 1979 M/s. Dibru Part II and Part III Fishery Co-operative Society Limited v. State of Assam, disposed of by us on 2-7-1980. The policy decision reads as follows:--

'VFF. 94/76-2. The Minister, Fisheries mentioned that the decision of the Cabinet as recorded vide item 9 of the meeting held on 28-3-1976 did not meet the subject, it was decided that (i) Fishery Cooperative Societies should be reorganised as proposed by the Department, (ii) Fishery settlement rules should be amended to provide for direct settlement of fisheries with the reorganised fishery Cooperative Societies for a period not exceeding one year at a time provided such societies are formed with 100 per cent actual fishermen belonging to the Scheduled Caste and/or Maimal Communities of Cachar district, (iii) Average revenue of the previous five years should be worked out for determining the annual revenue for settlement of fisheries with the reorganised Co-operative Societies.

Sd/- S. C. Sinha.'

We are now directly concerned with the proviso for our consideration in these cases. Rule 12 reads :--

'12. Except those referred to in Sub-rule No. 8 (b) above, all registered Fisheries shall be settled under tender system of sale in place of sale by auction.

'Provided that the State Government may settle any registered fishery, otherwise than under tender system, with a Fishery Co-operative Society formed with 100 per cent actual fishermen of the fishing population in the neighbourhood of the fishery concerned and belonging to the Scheduled Caste of the State or Maimal Community of the Cachar District at a revenue calculated and for a period decided by the State Government from time to time.'

Rule 13 is also substituted in the following manner:

'13. (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 members of actual fishermen belonging to the 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 tenderer.

(b) The remaining fisheries in the Subdivision available in that year under 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 fishermen belonging 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 7 1/2 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 7 1/2 per cent 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 tenders.

(e) When a fishery referred to in Sub-rule (b) above fetching a tender not exceeding Rs. 50,000 per annum is settled with any individual member from actual fishermen belonging to Scheduled Castes, Scheduled Tribes/Maimal Community or other Backward Classes the tenderer shall get a rebate of 7 1/2 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 tenderer Society shall get a rebate of 10 (ten) per cent as concession:

Provided that 10 per cent rebate as afroesaid shall not be available to Fishery Co-operative Societies formed with 100% shareholders from actual fishermen belonging to the Scheduled Castes of the State and Maimal Community of the District of Cachar if they accept settlement of Fishermen 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 tenderer claiming the concession provided in this Rule shall indicate the same in this tender.'

This Rule 13 provides for reserving up to 60 per cent of the fisheries in the subdivision for settlement in a year for sale under tender system with the persons

mentioned in Sub-rule (a) of the rule. The remaining 40 per cent of fisheries in the subdivision available for sale under the tender system, shall remain open for settlement to all communities including Co-operative Societies as referred to in Sub-rule (a).

9. The successive amendments of the Rules noticed above, show the anxiety of the Government to give a better deal to the deserving persons, the Co-operative Society formed by actual fishermen and actual individual fishermen by settling more and more fisheries with them. The emphasis in these rules indicates that the Government is more concerned about providing work to the actual fishermen to improve their lot than deriving revenue for the exchequer.

10. The main contention raised in the petitions is that so far as 40% fisheries are concerned, the Government cannot exercise the power under the proviso to Rule 12 for the settlement of such fishery directly. But this contention has not been canvassed before us at the bar. So we are not called upon to express any opinion on it. The submission at the bar on behalf of the petitioners centres round the contention that once the provision of Rule 42 is applied, namely by selecting any fishery to be settled by tender and giving instruction to the Deputy Commissioner or the Subdivisional Officer to lease them out for any specified period and in consequence thereof provision of Rule 43 has been followed by the Deputy Commissioner or the Subdivisional Officer in inviting tenders for the settlement of fishery by tender, the power of the State Government to take resort to the proviso to Rule 12 would not be available. But now ultimately the sole contention of the learned counsel for the petitioners is that the impugned wireless message by which the settlement procedure by tender has been stopped and thereby scuttled the Settlement does not have any backing of the provisions of the Rules. It is to be noted that the validity of the proviso to Rule 12 or Rule 8 (b) has not been challenged. Now the only challenge of the petitioners is that the impugned order does not have any valid sanction of law.

11. Mr. D. N. Choudhury, the learned counsel on behalf of the State has submitted that the petitions are premature and no legal rights of the petitioners have been taken away by the impugned order nor there is any breach of legal obligation made by the State in passing the impugned order. Accordingly, it is submitted on behalf of the State that there is no question of issuing any writ in the nature of mandamus on the facts of these cases.

In our opinion, the power of the State Government to settle directly any fishery when the Rules provide for it, is no longer res integra. It has been settled by a series of decisions of this Court as well as of the Supreme Court that the State Government has got unfettered power to directly settle the fishery even after the tenders have been called and submitted. We may refer to :--

(i) AIR 1957 SC 377 (Ganga Ram Das v. Tezpur Kaibarta Co-operative, Fishery Society Ltd.); (ii) ILR (1963) 15 Assam 288 (Birendra Nath Barman v. The Deputy Commissioner, Goalpara); (iii) AIR 1967 Assam 22 (Barada Kanta Bishya v. Assam Board of Revenue, Gauhati); (iv) AIR 1967 Assam 52 (Gauhati Anunatta Sampradaya Bahumukhi Co-operative Society Ltd. v. Secretary, Agriculture and Veterinary Department, Govt. of Assam Shillong); (v) AIR 1968 Assam 48 (Adarsha Fishery Co-operative Society v State of Assam) and (vi) AIR 1970 Assam 91 (FB) (Sikku v. State of Assam).

In the above cases the scope, content and ambit of Rule 12 of the Rules under which provision for direct settlement by the State, came up for consideration on the extant Rule framed in 1953. Then in Civil Rule No. 351 of 1978 (Ganakpara Fishery Co-operative Society Ltd. V. Kayakuchi Gaon Fishery Co-operative Society Limited), a Division Bench had to consider the scope and content of the proviso to Rule 12 introduced in 1976.

12. We may now notice in brief the above decisions which support the view that the State Government's power to settle fisheries directly under the Rules, is not in any way fettered and the same may be exercised at any time prior to the final settlement of the fishery. In Ganga Ram (supra) the main question that came up for consideration for determination by the Supreme Court was whether there was any power conferred on the State Government by the Rules to settle fishery otherwise than by sale, i. e, by individual settlement without settlement thereof by auction system. Their Lordships while considering the above question made the following succinct observation :

'The only relevant enquiry is whether there was any rule validly enacted under

Section 155 (of the Regulation) which enabled the State Government to settle the fishery otherwise than by sale by making an individual settlement thereof with Respondent No. 1 or the appellant in the manner in which it was done. There is absolutely nothing in the provisions of Section 16 (of the Regulation) which would go to show what are the principles on which such rules for the acquisition of fishery rights by the public or any person have to be made nor is there anything therein to indicate any policy which has to guide the State Government in the making of such rules. The whole thing is left to the discretion of the State Government which is empowered by Section 155 (of the Regulation) inter alia, to make rules relating to the granting of licenses and the framing of the right to fish in fisheries proclaimed under Section 16 (of the Regulation) consistent with the Regulation. No doubt the State Government could also be bound by such rules and would not be entitled to make any settlement of fishery rights unless and until there was a rule made in that behalf under Section 155 (of the Regulation). It would not be open to the State Government to contend that it had absolute property in these fishery rights and it was, therefore, entitled to settle them in any manner whatever.'

It is true that unless action of the State Government could be justified by reference to any Rule made under Section 155, it would not avail the party in whose favour direct settlement is made. Therefore, reliance was placed on the provision of Rule 12 of the Fishery Rules and it was submitted that under that rule specific power is given to the State Government to settle the fishery rights otherwise than by sale. In that context their Lordships have observed :

'The State Government is thereby invested with the power to settle fishery rights even by individual settlements without following the auction system or the tender system. Even though the power is not vested in the State Government by express provision made in that behalf, the context of Rule 12 sufficiently indicates the intention of the rule making authority. After having prescribed the procedure by way of auction sales in Rules 1 to 11 of Section I, a prohibition against the settlement of fishery rights otherwise than by sale is enacted in Right 12 except in the case of the State Government. No fishery is to be settled otherwise than by sale and that prohibition is

general in terms but an exception is carved out in favour of the State Government in terms which are only capable of construction that the State Government shall have the power of settling fishery rights otherwise than by sale. No limitation is placed on this power which is thus vested in the State Government and if the Slate Government is empowered to settle fishery rights otherwise than by sale it can do so by adopting the tender system if it thought it desirable to do so or even by entering into individual settlements if the circumstances of the case so warranted. Apart from the adoption of the tender system in place of the auction system, circumstances may conceivably arise where either by reason of the cancellation or relinquishment of fishery lease before the expiration of the period thereof and having regard to the situation then obtaining, it may not be feasible or desirable to sell fishery rights for the unexpired portion of such a lease either by public auction or by inviting tenders and the State Government may, under these circumstances, consider it desirable to enter into individual settlement of the fishery rights so as to earn for the State as much of revenue as possible. No fetter can be placed on the discretion of the State Government in this behalf and the State Government would be the best judge of the situation and would be in a position to determine settlement of fishery rights otherwise than by sale. There is nothing in the provisions of Section 4 containing rules for settlement of fisheries by tender system which militates against the above position.' Ultimately their Lordships of the Supreme Court have held that Rule 12 specifically empowers the State Government to settle the fishery rights otherwise than by sale and there is no conflict between the provisions of Section 16 of the Regulation and Rule 12 of the Fishery Rules. It has been further pointed out by their Lordships that the above decision has turned on the construction of Rule 12.

13. In Birendra Nath Barman (ILR (1963) 15 Assam 288) (supra), the question of direct settlement by the State under Rule 12 as obtained under 1953 Rules came up for consideration. In that case it has been ruled by a Division Bench of this Court that Rule 12 of the Fishery Rules only lays down that the ordinary method of settlement will be by sale. An exception has been created in favour of

the State Government. The State Government is empowered under Rule 12 to make settlement otherwise than by sale. Thus very wide discretion has been given to the State Government. The power under Rule 12 is not a power which can be exercised only at the initial stage when the Government has to elect the procedure as to whether the settlement should be by sale, by tender or direct settlement. There is nothing in Rule 12 which will show that once the power has been exercised by the State Government by directing a fishery to be settled by tender system, the power of the State Government to settle it direct is exhausted.

The Division Bench mainly relied on the decision of the Supreme Court in Gangaram (AIR 1957 SC 377) (supra). Before the Division Bench it was contended that the effect of giving such a wide power under Rule 12 to the Government to settle fishery directly will be to nullify the provisions of Rules 43 and 44 of the Fishery Rules. It was further contended that it would be in effect perpetuating the same evil to curb which Rules 43 and 44 were enacted. The argument in effect was that elaborate procedure is provided for in Rules 43 and 44 in order to safeguard the interest of the public and not to give opportunity to the executive authorities to indulge in any nepotism. It was strenuously contended that it would be perpetuating the same evil and if the Government was given wide power it was likely to abuse it. To the above contentions the Court observed in the following terms:--

'If the argument were that Rule 12 is ultra vires because it gives very wide power to the Government the argument may have some relevance to this question. But we do not think that the purpose behind Rule 12 or Rules 43 and 44 is to give effect to any such policy. Section 155 of the Assam Land and Revenue Regulation gives power to the State Government to frame certain rules relating to settlement and in the exercise of that power the State Government has framed Rule 12. If Rule 12 on its plain reading gives such a power to the Government, no limitation can be read into the rule simply because the ambit of the power is very wide. Rule 42 of the Fishery Rules only lays down that the Government may from time to time select any fishery or fisheries to be settled by tender system and instruct Deputy Commissioner or the Sub-Divisional Officer to lease them out

for any specified period. Rule 42 or subsequent rules do not cut down the wide power given to the Government under Rule 12 to make direct settlement.'

Then the Court referred in that context to the decision of the Supreme Court in Gangaram (supra), where in dealing with the question of the scope and ambit of Rule 12, their Lordships of the Supreme Court made the significant observations regarding the power of the State Government which can be exercised under Rule 12 to which we have already adverted- Before the Division Bench it was contended that in Gangaram (supra) the Supreme Court had to deal with a situation when the procedure under Rules 43 and 44 had been followed and the settlement had been set aside. It was contended that the Government at that stage could make direct settlement and not in the midst of the proceedings. To this contention the Court observed as follows:--

'It is true that the case (Gangaram) (supra) was decided on its own facts which were different. Their Lordships were considering the ambit and scope of Rule 12 and it was decided that no limitation is placed on the power given to the Government under Rule 12. Rules 43 and 44 also do not place any fetter on the power of the Government under Rule 12. Rule 12, as already indicated earlier, does not place any restriction on the power of the Government with regard to the point of time when the power is to be exercised. There is nothing in the Rules which lays down that such a selection can only be made at an earlier stage.'

Ultimately the Division Bench gave an opinion that there is no bar on the Government for making a direct settlement even though tender procedure was being adopted by the authorities with the approval of the Government and it was held that the order of the Government in making the direct settlement could not be said to be without jurisdiction.

14. In Barada Kanta Bishya (AIR 1967 Assam 22) (supra), the Division Bench of this Court had to consider the scope and content of Rule 12; and there it was categorically held that by simply adopting the procedure of tender system at the initial stage, the Government does not lose its power under Rule 12 to make direct settlement. It was further held that the power of the Government is not exhausted by an order of the Assam

Board of Revenue remanding the case to the Deputy Commissioner for fresh settlement. Till the settlement is made in pursuance of the order passed by the Assam Board of Revenue, the power of the Government is not exhausted and the order of the Board of Revenue does not in any way affect the power of the Government to make direct settlement under Rule 12.

15. In Gauhati Anunatta Sampradaya Bahumukhi Co-operative Society Ltd. (AIR 1967 Assam 52) (supra), a Division Bench of this Court again had to consider Rule 12 and Section (IV), (Rules 42, 43) of 1953 Fishery Rules and it was observed that the normal rule of settlement by auction sale is subject to the State Government's right under Rule 12. This Rule 12 gives wide powers to the State Government. Right of the Government under Rule 12 cannot be said to be exercisable only at the initial stage.

16. In Adarsha Fishery Co-operative Society (AIR 1968 Assam 48) (supra) the Division Bench had also to consider the scope and content of Rule 12 of the 1953 Fishery Rules where it was held that the fishery is a Government property. It is in the control and management of the Government. Fishery rules give power to the State Government to settle the fishery directly. There can be no lis or litigation or averment and counter-averment requiring a decision which might attract the incidents of judicial procedure. This is purely an administrative act by way of selecting a person, whom the Government considers to be the most suitable in their opinion. As the State Government has the full power to effect a settlement under Rule 12 directly with the party, it is not open to anyone to question the validity of the action taken in exercise of that power.

In rendering the above decision the Division Bench mainly relied on the decision of Gangaram (AIR 1957 SC 377) (supra).

17. A Full Bench of this Court in Sikku (AIR 1970 Assam 91) (supra) in which Sections 16, 155 and Rule 12 came up for consideration and it was held that an exception to settlement of the fishery by sale is made by Rule 12 under which the State Government is empowered to settle fisheries otherwise than by sale. If special circumstances exist, the Government can make direct settlement under the Rule. The Government is the best

judge about the existence of special circumstances. Therefore, if the Government has the subjective satisfaction that special circumstances exist for giving direct settlement the Government can do so and its opinion in this respect is to be final. It was further held that while exercising power under Rule 12 there will be lack of jurisdiction of the Government only if there is complete absence of material on which an opinion can be formed as to the existence of special circumstances warranting exercise of power under Rule 12. Such a jurisdiction is latent and a person acquiescing to it is not entitled to a writ.

18. In Ganakpara Fishery Co-operative Society Ltd. (supra), a Division Bench of this Court had to consider the extent; provision of the proviso to Rule 12 of the Rules with which we are concerned. The facts of that case are almost in pari materia with that of the present cases which we are dealing now. The contention now raised on behalf of the petitioners was also raised in Ganakpara Fishery case (supra) which was rejected by the Division Bench in which one of us (Pathak, J. as he then was) was a party. That case arose in the following way:

A notice of sale in respect of the Fishery in question was issued and the petitioner Society submitted a tender for Rs. 97,525.00 which was the highest. The second highest tender was submitted by Jania Salekura Fishery Co-operative Society Limited for Rs. 61,025.00. The Sub-Divisional Officer, who is the primary settling authority, by his order dated 12-6-78 settled the fishery in question with the Jania Salekura Fishery Co-operative Society Ltd. Being aggrieved by the order of the primary settling authority, the petitioner filed appeal before the Assam Board of Revenue and the learned Board by its order dated 28-8-78 allowed the appeal, set aside the order of settlement dated 12-6-78 and remanded the case to the primary authority for resettlement of the fishery in accordance with directions contained in its order. The Sub-Divisional Officer, in compliance with the direction of the Board published a notice of sale dated 15-9-78 inviting tenders for settlement, but the Government in exercise of its power under the proviso to Rule 12 of the Rules for settlement of fisheries, as amended by Notification No. VFF. 10/76/ Pt. II-A/12 dated 5-6-76 settled the fishery in question with the respondent No. 4 at

Rs. 23,000.00 for the period 8-10-78 to 31-3-79.

This order of direct settlement under Rule 12 was the subject-matter of challenge in the writ petition. There it was argued that the authority having once decided to settle the fishery in question by tender system, it was not open to the Government to resort to the plenary power vested in it by virtue of proviso to Rule 12 of the Rules. It was contended that the order in question had been passed so as to circumscribe the order that had been passed by the Assam Board of Revenue on 28-8-78 by which a direction had been given to the Sub-Divisional Officer to settle the fishery by inviting fresh tenders. The further submission on behalf of the petitioner was that exercise of powers under proviso to Rule 12 at that stage, when the case had been remanded by the Board to the Sub-Divisional Officer, was clearly in conflict with the direction given by the Board in exercise of its quasi-judicial powers. In other words, the argument on behalf of the petitioner proceeded that the power conferred upon the Government by virtue of proviso to Rule 12 could be exercised only at the initial stage and once it had decided to settle the fishery by tender system it was divested of that power. The Bench considered the earlier decisions of the Court, namely, AIR 1967 Assam 22 (supra), AIR 1967 Assam 52 (supra) and also on making a comparative study of Rule 12 (old) and Rule 12 (new) held that it was open to the State Government to introduce tender system under the proviso to the old Rule even though the general rule was settlement by sale. Under the present Rule 12 general rule is to settle by tender system and the proviso thereunder empowers the Government to settle any registered fishery otherwise than by tender system with a Fishery Co-operative Society formed with hundred per cent actual fishermen in fishing population in the neighbourhood of the fishery concerned and belonging to the Scheduled Caste of the State and/or Maimal community of the Cachar District at a revenue calculated and for a period as decided by the State Government from time to time. On an interpretation of the old Rule 12 and proviso to new Rule 12, it was further observed by the Bench that though the provision is to the system of settlement of the fisheries contained in the two rules are different, the principle, in our opinion, that has to be applied for interpretation of the old

Rule as well as the new Rule would be the same. The pertinent question is: once having initiated the general system or the ordinary system, is it open to the Government to resort to the powers vested in it by the proviso? The answer has been returned in the affirmative in the aforesaid two decisions. The rationale of the aforesaid decisions applies with full force to the present case. At this stage, we may also refer to AIR 1957 SC 377 (Gangaram Das v. Tezpur Kaibarta Co-operative Fishery Society Ltd.) wherein their Lordships were pleased to hold that the State Government is, by Rule 12 of the Rules for Settlement of Fisheries, invested with the power to settle fishery rights even by individual settlements without following the auction system or the tender system.

Another argument advanced there on behalf of the petitioner was that the proviso to Rule 12 could not be so interpreted as to nullify or destroy the main provision contained in Rule 12. To this argument it was observed by the Bench.

'......the proviso does not nullify or

'destroy the main provision; it only provides an exception to the general rule, viz. it gives power to the State Government to settle a fishery by direct negotiation in case other conditions laid down in the proviso are fulfilled. Thus, this proviso only clothes the State Government with a power to settle fishery by direct negotiations in exercise of its discretion provided the other conditions laid down in the proviso are fulfilled.'

19. The principles that can be culled from the decisions discussed above are that under the provision of Rule 12 both old and new, the State Government has got the unfettered power to settle the fisheries directly in compliance with the provisions contained therein. The above principles of law have been holding the field for the last about two decades and we do not find any warrant for departing from them.

20. On a careful perusal of the proviso to Rule 12 we find that the exercise of the power under it is not arbitrary. There are certain prerequisites which must be satisfied before the power of direct settlement can be exercised by the State Government under the proviso. These prerequisites are that-

(a) a settlement of a registered fishery can only be made with a fishery co-operative;

(b) formed with hundred per cent actual fishermen of fishing population;

(c) in the neighbourhood of the fishery concerned;

(d) belonging to the Scheduled Castes of the State or Maimal Community of the Cachar District; and

(e) at a revenue calculated and for a period decided by the State Government from time to time.

The above prerequisites are demonstrative of the fact that the State Government can directly settle the fishery within the four corners of the provisions contained in the proviso. Unless the above conditions are in existence the power of settlement under the proviso would never be available to the State. If any one and more of the pre-conditions noted above are absent, the power under the proviso would not be available to the State. These prerequisites are indicative of the fact that the rule making authority has given a guideline for the exercise of the power under the proviso, and has not been left to the arbitrary discretion of the State. Therefore, exercise of such power cannot be said to be naked, unguided or uncanalised.

The purpose behind the incorporation of the proviso to Rule 12 seems to be to give opportunity to the deserving actual fishermen of the locality who may be eminently suitable for the settlement of the fishery but their economic conditions may be such that they may not be in a position to compete with the other tenderers in settlement of fisheries under tender system. This proviso is really very wholesome, pragmatic and meaningful which is meant to secure settlement to the deserving actual fishermen of the neighbourhood of the fishery. This proviso, in a sense, is an improvement on the old Rule 12. Now the State Government's power is to a certain extent circumscribed inasmuch as, it can only exercise when the prerequisites noted above are in existence but within that constricted sphere, its power is plenary. In our opinion, this is a piece of social legislation, which is framed for the purpose of giving opportunity to the listed class of persons mentioned in the proviso to Rule 12, in the matter of their avocation.

21. We have already noticed the provision of Clause (b) of Rule 6 under which the State Government may extend the period of lease if the conditions enumerated in that Sub-clause are present. The

State Government have the undoubted power also of extending the period of lease. This undoubted power of the State Government under Clause (b) of Rule 8 has not been challenged by the petitioners in these cases.

22. The impugned order, as we have read earlier, is only to the effect that as the Government have received certain applications for direct settlement of the fisheries or for extension of the lease of the fisheries, the settlement, of the fisheries by tender has been stayed by the impugned order on 22-2-80, that is, long before the date fixed for opening the tenders on 20th March, 1980. In our opinion, the impugned order was passed only to see whether any of the fisheries for which applications have been received as aforesaid, can be considered for direct settlement or for extension of period of lease. Once having accepted that the State Government has got the unfettered power to settle the fisheries under the proviso to Rule 12 before the final settlement by tender and also the power of extension under Clause 9 (b) of Rule 8, the impugned order is only in effect ancillary or incidental for the exercise of the main power of direct settlement and for extension of period of lease.

We are of firm opinion that where a statute gives a power, such power implies that all legitimate steps may by taken to exercise that power even though these steps may not be clearly spelt in the statute. Where the rule making authority gives power to certain authority to do anything of public character, such authority should get the power to take intermediate steps in order to give effect to the exercise of the power in its final step, otherwise the ultimate power would become illusory, ridiculous and inoperative which could not be the intention of the rule making authority.

In determining whether a power claimed by the statutory authority can be held to be incidental or ancillary to the powers expressly conferred by the statute, the court must not only see whether the power may be derived by reasonable implication from the provisions of the statute, but also whether such powers are necessary for carrying out the purpose of the provisions of the statute which confers power on the authority in its exercise of such power.

23. We are of the view that the impugned order is only of the nature and character of giving effect to the proviso to Rule 12 and Clause (b) of Rule 8 for the State Government's exercise of undoubted power. Such order, in our opinion, does not in any way violate any of the provisions of the Rules, rather it becomes sometimes absolutely necessary for giving time to the State for consideration as to whether power under the proviso to Rule 12 or Rule 8 (b) is to be exercised in a given state of facts and circumstances.

AS we have already noticed that by the impugned order the settlement of the fishery generally was stayed as the Government had received some applications for direct settlement or for extension of the period of lease of some of the fisheries. It shows that the Government wants some time to consider the applications pending before it and therefore the settlement by tender system has been stayed so that no person or tenderer is prejudiced in case the Government decides to settle the fishery by exercise of the power under the proviso to Rule 12 or under Rule 8 Clause (b) the period of lease is extended. This impugned order was passed on 22-2-80, that is, about a month before the date fixed for settlement on 20-3-80.

We have already adverted earlier that the main grievance sought to be raised on behalf of the petitioners is that the petitioners have already submitted tenders in pursuance to a notice issued under the Rules inviting tenders, they are entitled to their tenders being considered. In other words, the submission is that the impugned order has stultified the ongoing process made in pursuance of the Rule selecting the fisheries to be settled by tenders in consequence thereto inviting tenders for settlement. Such submission as we have noticed earlier, had been rejected by this Court in the decisions discussed above. We are not impressed with the submission made by the learned counsel for the petitioners. If the Rules permit the Government to exercise the power, there is no impediment in staying the process of settlement by tenders in order to enable the Government to consider whether some of the fisheries for which applications have been made, can be settled directly under the proviso to Rule 12 or period of lease need be extended under Clause (b) of Rule 8.

24. In view of the facts and circumstances of the case and for the reasons stated above, we do not find that the impugned order has in any way violated the provisions of the Rules.

25. In the result, these petitions are without merit and they are rejected. The Rules are discharged. In the facts and circumstances of the case, we do not pass any order as to costs. The stay orders granted by this Court on 2-4-80 stand vacated.

K. Lahiri, J.

26. I agree to the conclusions reached.

M. Ibotombi Singh, J.

27. I agree.


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