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Co-operative Society Ltd. and anr. Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Trusts and Societies
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 229 of 1980
Judge
ActsAssam Fishery Rules, 1953 - Rule 11; Assam Land and Revenue Regulations, 1896 - Sections 16, 147 and 155
AppellantCo-operative Society Ltd. and anr.
RespondentState of Assam and ors.
Appellant AdvocateB.C. Barua and N.C. Das, Advs.
Respondent AdvocateB.M. Goswami, Govt. Adv., A.M. Mazumdar and A.C. Bora, Advs.
DispositionApplication allowed
Excerpt:
- - again this interim order may be regarded as one passed by the deputy commissioner as agent of the state government and may as well amount to an order passed by the state government, in which case also no appeal will lie. such a right may be both in respect of a declared fishery as well as on undeclared fishery......of the assam land and revenue regulation (hereinafter 'the regulation') or under rule 11 of the assam fishery rules (hereinafter 'the fishery rules') is not maintainable as the impugned order dated 3-5-80 makes only an interim arrangement to prevent any loss of government revenue pending settlement of the fishery. 6. mr. a. m. mazumdar, the learned counsel for respondent no. 5 answers that the impugned order dated 3-5-80 being an order passed by the settling authority appeal is maintainable under rule 11 of tha fishery rules; and that even if no appeal lies under that rule, appeal surely lies under section 147 of the regulation whereunder the fishery rules have been framed. 7. mr. b. m. goswami for the state of assam submits that neither rule 11 nor section 147 are attracted in this.....
Judgment:

Saikia, J.

1. This writ application impugns the order dated 5-5-80 passed by the Assam Board of Revenue, in Case No. 7RA(F)/80 admitting the appeal and staying the operation of the order appealed against, namely, the order dated 3-5-80 passed by the Additional Deputy Commissioner, Dibrugarh allowing the petitioner. Dehing Part I Fishery Co-operative Society Ltd. (hereinafter 'the petitioner Society') to operate fishing at Merlegona-Khana Fishery (hereinafter 'the Fishery') until further orders pending settlement of the Fishery by the Government. Tha question required to be decided is whether the appeal is maintainable in the Assam Board of Revenue (hereinafter 'the Board') against an order of interim arrangement in respect of a fishery pending settlement? In other words, whether the Board has jurisdiction to entertain an appeal against an order passed by the Deputy Commissioner making an interim arrangement in respect of a fishery pending settlement?

2. The petitioner society is a Fishery Co-operative Society reorganised in 1976 according to the Government of Assam's declared policy of reorganising one fishery co-operative society for one particular fishery. It is composed of 100 per cent actual fishermen belonging to tha Scheduled Caste community hailing from the villages of Khowang, Koimari, Sin-gari, Baligaon, Itakhuli Natum Gaon and Dihing Sona Gaon around the fishery which was settled with it at a revenue of Rs. 12,732/- for the period from 1-4-76 to 31-3-79 and later extended for another year (1979-80) at the same terms and conditions.

3. The Deputy Commissioner, Dibrugarh issued sale notice dated 12-2-80 fixing 20-3-80 for submission of tender for settlement of the fishery for the period

from 1-4-80 to 31-3-83. However, the Government of Assam by a W. T. message communicated under Memo No. VFF. 465/ 79/134-A dated 22-2-80 directed all the Deputy Commissioners and Sub-Divisional Officers not to open the tenders. The aforesaid W. T. message has already been challenged in a writ application before this Court in Civil Rules Nos. 174 and 175 of 1980, which are still pending. This Court by order dated 2-4-80 stayed operation of the W. T. message. The tenure of petitioner Society's settlement having meanwhile expired, it applied to the Deputy Commissioner to allow it to continue in possession and the Additional Deputy Commissioner by his order dated 1-4-80 allowed it to do so for another month. On 29-4-80 the petitioner Society again applied for continuation of its possession. This time the respondent No. 5, Shri Ram Prasad Das also filed a petition and obtained an ex parte order dated 29-4-80 from the Deputy Commissioner, Dibru-garh allowing him to operate the fishery with effect from 1-5-80 pending its settlement. However, at the instance of the petitioner Society the Deputy Commissioner by his order dated 3-5-80 (hereinafter, 'the impugned order') reviewed his earlier order dated 29-4-80 and allowed the petitioner Society to temporarily operate the fishery in question on the same terms and conditions; and the Officer-in-Charge of Borbarua Police Station was directed by another order (Annexure VII) to hand over possession of the Fishery to the petitioner Society; and the Officer-in-Charge did so taking it from the respondent No. 5. The following is the text of the order:

No. LRF. 9/76/79 Dated, Dibrugarh

the 3-5-80,

To

The Chairman,

Dehing Part I Fishery Co-opt. Society Ltd., Khowang Ghat.

Sub: Merlogona Khona Fishery, Ref: Your petition dt. 29-4-80.

With reference to your petition dated 29-4-80, you are hereby temporarily allowed to operate fishing at Merlogona Khona Fishery on the same terms and conditions until further orders from this office. This permission will be cancelled at any time without any notice if settle-

ment order is received from Govt. on behalf of any society. In the meantime you must deposit one month's revenue immediately.

Sd/- Illegible.

3-5-80.

Addl. Deputy Commissioner, Dibrugarh.

4. Against this impugned order dated 3-5-80 the respondent No. 5 preferred an appeal (Case No. 7RA(F)/80) which was admitted by the Board which passed the now impugned order dated 5-5-80 referred to above. Against that Board's order (dated 5-5-80) this Civil Rule was obtained on 9-5-80.

5. Mr. B. C. Barua, the learned counsel appearing for the petitioner society, submits, inter alia, that the admission and stay order passed by the Board (dated 5-5-80) is without jurisdiction inasmuch as the appeal purported to have been filed under Section 147 of the Assam Land and Revenue Regulation (hereinafter 'the Regulation') or under Rule 11 of the Assam Fishery Rules (hereinafter 'the Fishery Rules') is not maintainable as the impugned order dated 3-5-80 makes only an interim arrangement to prevent any loss of Government revenue pending settlement of the Fishery.

6. Mr. A. M. Mazumdar, the learned counsel for respondent No. 5 answers that the impugned order dated 3-5-80 being an order passed by the settling authority appeal is maintainable under Rule 11 of tha Fishery Rules; and that even if no appeal lies under that Rule, appeal surely lies under Section 147 of the Regulation whereunder the Fishery Rules have been framed.

7. Mr. B. M. Goswami for the State of Assam submits that neither Rule 11 nor Section 147 are attracted in this case the order being one passed by the Deputy Commissioner in the interest of State's revenue, not by way of settlement of the Fishery. Hence arises the question stated above.

8. Rule 11 of the Fishery Rules now provides as follows:

'Rule 11. Appeal against the order of the settling authority:-- All appeals against the orders of the settling authority passed under those Rules shall lie to the Assam Board of Revenue. Appeals must be preferred within thirty days of the date of such orders'.

9. On scrutiny of the above provision it appears that all appeals against the orders of the settling authority passed under these Rules shall lie to the Board. Such appeals must be preferred within 30 days of the date of the impugned order. The Rule does not speak of settlement orders only, but speaks of orders of the settling authority. The fact that such appeals are to be preferred within 30 days, however, indicates that the tenure of the order is to be of such duration that it can be appealed from within 30 days. The expression settling authority also indicates that the order must have been passed in exercise of powers of, or in connection with powers of, settlement. If an impugned order satisfies those requirements the order shall be appealable, otherwise not. Regular settlement orders, that is orders of settlement for a period passed under the Fishery Rules, will surely be such orders. Orders of cancellation of lease, forfeiture of security, and resale may also amount to orders of settling authority passed under those Rules. When, however, the settlement is itself the subject-matter in a court proceeding and by virtue of the court's stay order or other interim orders, the fishery remains without settlement and by some interim arrangement the Deputy Commissioner or the Sub-Divisional Officer allows any party to operate the fishery interim, in the interest of the Government revenue, as in the instant case, the question arises whether such an order amounts to one passed under the Fishery Rules. Such interim arrangement orders are often passed as directed by the Court itself. In such a case it does not amount to an order passed under the Fishery Rules, but under authority of Court. When no such direction is given by the Court, the appropriate authority having no governing rules, in the interest of Government revenue, may make such interim arrangement. In such a case it cannot be said to be an order passed under the Fishery Rules as envisaged under Rule 11 and no appeal will lie to the Board under Rule 11 of the Fishery Rules. Such interim orders may not be for long periods and an appeal within 30 days of the order will be meaningless. To entertain an appeal against an order passed by an appropriate authority pursuant to a direction of the Court will virtually amount to contempt of the Court. There will be multiplicity of proceedings. Therefore, there can be no doubt that no appeals will lie under Rule 11 against such orders. In

the instant case the impugned order, being consequential to a stay order, cannot be said to have been passed under the Fishery Rules. No procedure prescribed for settlement has been followed. Again this interim order may be regarded as one passed by the Deputy Commissioner as agent of the State Government and may as well amount to an order passed by the State Government, in which case also no appeal will lie.

10. The next question is whether an appeal is maintainable under Section 147 of the Regulation. It is true that at one stage the settlement of fisheries was wholly included under the Regulation, In the first Edition of the Assam Land Revenue Manual, Vol. X (1896) there were no separate Fishery Rules but there were Executive Instructions dealing with the matter. In the 2nd Edition also there were no separate Fishery Rules, but Executive Instructions Nos. 129 to 200, in Part V, Chapter VIII dealt with the matter. In the 3rd Edition, the same arrangement continued and Executive Instructions 161 to 175 in Part V. Chapter VIII dealt with Fisheries, Instruction 169 dealt with confirmation of sale and Instruction 172 with appeal. In the 4th edition (1921) and 5th Edition (1931) the same arrangement continued. Part IV, Chapter V Instructions 179 to 194 dealt with Fisheries. In the 6th Edition (1945) also there were no separate Fishery Rules. The Executive Instructions 179 to 194, Part IV. Chapter X. dealt with the matter. Instruction 187 dealt with confirmation, and Instruction 190 with appeal. Throughout this period appeal lay under the Regulation to the prescribed authorities.

11. Fishery Rules were 1st framed in 1953 vide Notification No. RF. 23/45/284 dated 15th April, 1953. The notification said: 'In exercise of the powers conferred by Sections 155 and 156 of the Assam Land and Revenue Regulation, 1886, and by Section 6 of the Indian Fisheries Act, 1897 (IV of 1897), the Governor of Assam is pleased to make after previous publication the following rules for the settlement of fisheries in supersession of previous rules in this behalf appearing in Appendix IV-A at pages 258-259 and the Executive Instructions in Chapter X of Part IV of the Assam Land Revenue Manual, Volume I.'

12. Under the 1953 Fishery Rules, Rule 11 was in the following language:

'11. Appeal.-- All orders of a Deputy Commissioner or Sub-Divisional Officer passed under these rules are appealable to the Assam High Court. Orders of settlement, however, will be appealable only after confirmation by the Commissioner of Division;

Provided that there shall be no appeal against the order of settlement passed by the State Government under Rule 12.'

13. On scrutiny of the language it is clear that this Rule envisaged appeals against two categories of orders, namely, orders of settlement, which were made appealable only after confirmation, and other orders which were appealable without confirmation.

14. In April, 1971 the Rule was substituted vide Notification No. VFR. 209/ 70/15 dated 3rd. April 1971 published in the Assam Gazette dated 5-4-71 as follows :

'11. Appeal against the order of the confirming Authority.-- All appeals against the orders of the confirming authority passed under these Rules shall lie to the Assam Board of Revenue. Appeals must be preferred within thirty days of the date of such orders.

The April amendment was superseded by the amendment made in August, 1971 vide Notification No. VFR.127/71/55 dated 7th. August, 1971 published in the Assam Gazette, Extraordinary, dated 7th August, 1971. But there was no change in Rule 11 as substituted in April, 1971.

15. By Notification No. VFR, 127/71/76 dated 27th. October, 1973, published in the Assam Gazette dated 14-11-1973 the word 'confirming' occurring in Rule 11 was substituted by the word 'settling' and we have the present Rule quoted above.

16. Though the Fishery Rules 1953

constituted separate rules relevant to the

earlier executive instructions, it could not

be said that the matter of fishery was

entirely separated from the Regulation or

that under no circumstances appeal or

revision would lie under the Regulation. Of course, thereafter no settlement

could be made otherwise than under the

Rules.

17. Section 16 of the Regulation deals with the right in fishery providing as follows:

'16. The Deputy Commissioner, with the previous sanction of the State Government, may by proclamation published in

the prescribed manner, declare any collection of water, running or still, to be a fishery and 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 this Regulation, except as provided in the rules made under Section 155.

Provided that nothing in this section shall affect any express grant of a right to fish made by or on behalf of the Government or any fishery rights acquired by a proprietor before the commencement of such rights in any fishery forming after the commencement of this Regulation in his estate.'

18. Thus under this section the declaration of any collection of water to be fishery is necessary and no right shall be acquired over such a fishery except as provided under the Rules made under Section 155. The Assam Fishery Rules have been made under Section 155. The proviso, however, envisages dealing with grant of right to fish by or on behalf of the Government and fishery rights acquired before the commencement of the Regulation, or after the commencement of the Regulation as a part of one's own estate. It is, therefore, clear that the express grant of a right to fish may be made by or on behalf of the Government even outside the provisions of the Rules framed under Section 155. Fishery Rules deal with declared fisheries. The proviso to Section 16 enables the Government to grant a right to fish outside the Fishery Rules; such a right may be both in respect of a declared fishery as well as on undeclared fishery.

19. In the instant case the order relates to a declared fishery, but the interim arrangement has not been made under the Fishery Rules. To treat it as one made under the proviso to Section 16, and for that matter, appealable under Section 147 of the Regulation, it must amount to an express grant of right to fish.

20. 'Grant' according to Webster's New Twentieth Century Dictionary, means a conveyance in writing of such things as cannot pass or be transferred by word only, as land, rents, reversions, titles, etc. According to Mozley & Whitley's Law Dictionary a grant may be denned generally as the transfer of property by an instrument in writing without the delivery of possession of any subject matter thereof. 'Grant' has to be understood in

the context of the Regulation. Chapter VII of Executive Instructions in the 1921 Edition of the Assam Land and Revenue Manual dealt with alienation of State lands. Instruction 150 dealt with the forms of alienations as under:

'150. Lands which are the property of the State may be disposed of-

(1) by sale at full market value;

(2) by sale on favourable terms to a public body or association or to an individual for a public purpose;

(3) by gift or grant to-

(a) a public body or an association of individuals for a public purpose;

(b) private individuals in remuneration for public services to be performed;

(c) private individuals for their private benefit.'

Executive Instruction 154 dealt with gift or grant of land. Thus, in the Regulation grant means conferring of right, by settlement, or alienation. Waste Land Grant, Fee-Simple Grants, Special cultivation grants, etc. are understood in the same sense. Executive Instruction 172 in this sense provided that as regards gift or grant of lands, the previous sanction of the Government of India should be obtained in cases where the value of the grant exceeded Rs. 10,000/- when given for certain public purpose.

21. In AIR 1953 SC 309, the State of Assam v. Keshab Prasad Singh, it was observed that the prescribed fisheries in Assam were lifted out of the realm of matters which could be disposed of at the executive direction of either Government or officials and were placed under statutory regulation and control by Sections 16 and 155 of the Regulation and that no fishery could be 'settled' except in accordance with these Rules. The proviso to Section 16 is, it may be noted, an exception applicable to the stated cases. The interim arrangement required to be made in respect of a fishery pending settlement or pursuant to order of the Court is not regulated by the Rules. It is a case of no rule and executive discretion to that extent is exercis-able and any order so passed cannot be treated as one passed under the Fishery Rules. Nor can it be said to be one passed under the proviso to Section 16. No appeal will, therefore, lie under Section 147 of the Regulation.

22. The impugned order cannot be held to be appealable for another reason. The W. T. message sent by the Government to the Deputy Commissioner not to

open the tenders has been challenged before this Court and the interim arrangement had to be made pending settlement. This being a consequential interim order, cannot be held to be appealable to the Board.

23. In either view of the matter we are of the opinion that no appeal is maintainable against the impugned order dated 3-5-1980 before the Board and it acted without jurisdiction in admitting the appeal and in passing the stay order dated 5-5-1980, which is hereby set aside and quashed.

24. The application is allowed and the Rule is made absolute. No order as to costs.

B.L. Hansaria, J.

25. I agree.

.


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