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Gauhati High Court · body

1992 DIGILAW 42 (GAU)

Tanuram Tayeng v. State of Assam and others

1992-02-24

D.N.BARUAH, U.L.BHAT

body1992
Judgement BARUAH, J. :- The writ petitioner in this Civil Rule has challenged the order dated 19-9-91 passed by the first respondent, praying for a writ of mandmus and/or certiorari to set aside and quash the said orders. In the nature of order we proposed to pass in this case, we do not think it necessary to issue notice on 5th Respondent. The 6th Respondent has entered appearance through his counsel. Senior Gov-ernment advocate appeared on behalf of 1st to 4th Respondents. 2. The petitioner states that the 5th Respondents settled Pub-Lali Min Mahal with the petitioner for a period of three years from 1987-90. After the expiry of the said period of settlement, the petitioner filed a petition dated 6-8-90 before the Sub-Divi-sional Officer-cum-Chief Administrator, Jonai Mahakuma Parishad, with a request to extend the settlement for the period 1990-92. M/s. Brahmaputra Part-III, IV and V Fishe-ries Co-operative Societies Ltd., for short the Society, filed a writ petition before this Court alleging that the fishery settled with the petitioner was actually included within the fishery settled with the said Society and this Court issued an order of status quo. In pursuance of the said order, the 2nd Res-pondent stayed the settlement of the fishery. The petitioner on 14-9-90 filed yet another application for extension of the settlement of Lali (Pub Lali and Pachim Lali) Fishery for the said period of 1990-92 before the Minister, Panchayat and Rural Development Depart-ment Assam. 3. The State Government on the basis of the application filed by the petitioner granted extension of the settlement of fishery for a period 1990-91 in favour of the petitioner at 10% above the previous years revenue. This extension of settlement in respect of Pub Lali and Pachim Lali (outside Brahmaputra Part III, TV and V) Fishery was further extended for the period 1991-92 in his favour at and additional 10% revenue. This decision was communicated by the 2nd Respondent vide letter dated 19-10-90 to the Sub-Divisional Officer (Civil), Jonai, I/c. Chief Adminis-trator, Jonai Mahkuma Parishad. 4. Thereafter, the 5th Respondent deliv-ered possession of the fishery and thus the petitioner came into possession of the said fishery and since then the petitioner was operating the fishery. 5. The then Secretary of the Society filed a writ petition in this Court (Civil Rule 2084/90) disputing the boundary of the fishery settled with the petitioner. 6. 4. Thereafter, the 5th Respondent deliv-ered possession of the fishery and thus the petitioner came into possession of the said fishery and since then the petitioner was operating the fishery. 5. The then Secretary of the Society filed a writ petition in this Court (Civil Rule 2084/90) disputing the boundary of the fishery settled with the petitioner. 6. The petitioner, thereafter, received an order dated 24-12-90 issued by the 2nd Respondent, whereby the order of extension of settlement of Pub-Lali and Pachim-Lali Fishery given in favour of the petitioner was cancelled. By the order of cancellation, the Government also directed to maintain "status quo as of 16-9-87 of Brahamputra Part-III, IV and V Fishery Co-operative Society Ltd.". 7. The petitioner, approached this Court by filing another writ petition (Civil Rule 3127/91) challenging the said order dated 24-12-90 issued by the 2nd Respondent. This Court after hearing the parties quashed the order dated 24-12-90 passed by the 2nd Respondent and directed the Government to re-hear the matter in presence of the contest-ing parties. The State Government, there-after, took up the matter and after giving notice to the parties heard and decided the matter afresh. The Government passed An-nexure-F order dated 19-9-91, holding that the petitioner misled the government in his application stating that he was the settlement holder of both the fisheries although he was the settlement holder of only the Pub-Lali Fishery. Besides, the extension petition was filed after the expiry of the period of settle-ment and accordingly it was held that the extension granted to the fishery concerned for the period 1990-92 was illegal. Therefore, the Mahkuma Parishad was directed not to settle any fishery in the name of Lali (Pub Lali and Pachim Lali) Fishery, in favour of any person in future till the matter was decided finally in the public interest. Against this order dated 19-9-91, Annexure-F, the petitioner has come before this Court challenging the order. 8. The 6th Respondent has filed counter affidavit, controverting the averments made in the writ petition. The petitioner also filed an affidavit-in-reply and also an additional affidavit. The 6th Respondent stated that the petition itself is not maintainable in law. 9. We have heard Mr. A. M. Mazumdar, learned counsel for the petitioner, Dr. M. K. Sarma, learned counsel for the 6th Respon-dent. We have also heard Mr. S. A. Laskar, learned Senior Government Advocate for 1st to 4th Respondents. The 6th Respondent stated that the petition itself is not maintainable in law. 9. We have heard Mr. A. M. Mazumdar, learned counsel for the petitioner, Dr. M. K. Sarma, learned counsel for the 6th Respon-dent. We have also heard Mr. S. A. Laskar, learned Senior Government Advocate for 1st to 4th Respondents. 10. Mr. Mazumdar, learned counsel for the petitioner has submitted that the im-pugned order, Annexure-F, is illegal inas-much as the government after giving order of extension for two years, till the end of June 1992, had no jurisdiction and authority to cancel the extension of settlement once given. According to him, this was contrary to provi-sions of law. 11. Dr. Sarma, learned counsel for the 6th Respondent has challenged the maintain-ability of the writ petition mainly on two grounds. His first contention is that the Panchayati Raj Act does not contain any provision for giving extension of settlement, therefore, no authority has any power to give extension of settlement. The extension given by the government, was illegal, without jurisdiction and contrary to provisions of the statute, and therefore, the government, right-ly cancelled the extension. On this ground alone, the petition deserves summary rejec-tion. Dr. Sarma has also submitted that even assuming that the power of giving extension of settlement can be located in the statute, such extension of settlement can only be made within the period of settlement. In the present case, the extension of settlement having been made after expiry of the period of settlement, it was without jurisdiction and the State Government by order dated 19-9-91 had rightly cancelled the extension of settlement. Over and above these submissions, Dr. Sarma has further submitted that on the facts also the authorities concerned after making pro-per and thorough enquiry found that the fishery given in favour of the petitioner actually falls within the area of operation of "the Society". 12. Mr. Mazumdar, learned counsel for the petitioner has not been able to point out any provision under the Panchayati Raj Act empowering any authority to grant extension of the lease. He having failed to show any such provision has submitted that even though the statute specifically does not empower any authority to extend the settlement, it can be implied that the settling authority has the power to grant extension of the settlement. 13. He having failed to show any such provision has submitted that even though the statute specifically does not empower any authority to extend the settlement, it can be implied that the settling authority has the power to grant extension of the settlement. 13. The question falling for determina-tion in this writ petition is - whether any authority has power to grant extension of settlement even though the Statute does not provide any provision for extension of settle-ment ?, and whether the government or any other authority can grant extension of settle-ment of the fishery after the period of settle-ment has expired ? 14. As per the rule of interpretation, the omission of word cannot be inferred from any Statute. It is a corollary to the general rule of literal construction that nothing is to be added to or taken away from a Statute unless there are adequate grounds to justify the inference that the legislature intended some-thing which it omitted to express. There is no presumption that the legislature makes omis-sions. The Court is not entitled to read words into an Act, unless clear reason for it is to be found within the four corners of the Act itself. A case not provided for a Statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequences to have been unintentional. 15. Provisions for settlement of fisheries of the Mahkuma Parishad are contained in S. 73 of the Panchayati Raj Act, 1972. Under the said Section, the fisheries are to be settled by inviting tenders by the Chief Executive Councilor of the Mahkuma Parishad in the manner prescribed. Section 73 of the Pancha-yati Raj Act runs thus :- " 73. Settlement of fisheries : (1) Save as otherwise provided in this Act or rules made thereunder all fisheries of the Mohkuma Parishad and of the Gaon Pan-chayats falling within the jurisdiction of Mohkuma Parishad shall be settled by invit-ing tenders by the Chief Executive Councilor of the Mohkuma Parishad in the manner prescribed : Provided that in case of failure to settle any such fishery for want of adequate bid even after inviting tender for the second time, the Mohkuma Parishad may entrust the direct management of such fishery to the Gaon Panchayat in the jurisdiction of which the fishery is situated. (2) Subject to confirmation of the settle-ment made under Sub-S. (1) by the Executive Committee of the Mohkuma Parishad the lease in the prescribed form shall be issued by the Chief Executive Councilor of the Moh-kuma Parishad to the person in whose favour settlement is confirmed. (3) The Mohkuma Parishad shall deposit all sale proceeds of such fisheries in its fund and in respect of the sale proceeds of the Gaon Panchayat fisheries the same shall be paid to the Gaon Panchayat concerned after deduct-ing any contingent expenditure incurred in connection with the sale of such Gaon Panchayat Fishery." 16. From the above provision, it is clear that the Chief Executive Councilor of the Mohkuma Parishad has power and authority to settle any fishery of Mohkuma Parishad or of Gaon Panchayat falling within the jurisdic-tion of the Mahkuma Parishad. In case of failure to settle any such fishery by the Chief Executive Councilor in the manner pres-cribed for want of adequate bid even after inviting tender for the second time, the Mohkuma Parishad may extrust the direct management of such fishery to the Gaon Panchayat in the jurisdiction of which the fishery is situated. If the settlement is given to any person a lease is to be issued in the prescribed form by the Chief Executive Councilor of the Mahkuma Parishad to the persons in whose favour the settlement is confirmed. Section 73 is the only provision in the Act for settlement of fisheries by Mah-kuma Parishad. 17. From a plain reading of the Pancha-yati Raj Act, it does not appear that the legislature intended that any authority shall have power of extension of settlement. Since no such power is provided in the statute, no authority has power to give extension of settlement. Learned counsel for the petitioner does not rely on provisions of any other Statute such as General Clauses Act to support his contention. 18. The next point is that even if such power by implication can be said to exist, whether the power of extension can be exercised after expiry of the period of settle-ment ? Learned counsel for the petitioner does not rely on provisions of any other Statute such as General Clauses Act to support his contention. 18. The next point is that even if such power by implication can be said to exist, whether the power of extension can be exercised after expiry of the period of settle-ment ? This Court had occasion to consider this aspect of the matter in Jagannath Urang v. The State of Assam, (1985) 2 GLR 38, and held that when the original settlement is not in existence, authority cannot have any power to grant extension, inasmuch as, the word "extension" means existence of something to be extended. After the expiry of the period of settlement, there would be no settlement in existence and the question of extending such lease which is not in existence, does not arise. 19. In view of the above, the extension granted by order dated 24-12-90 issued by the 2nd Respondent was illegal. The government after due consideration of this aspect of the matter, rightly cancelled the extension grant-ed earlier by order dated 24-12-90. 20. Mr. Mazumdar has also submitted that the 2nd Respondent while passing the Annexure-F order dated 19-9-91 failed to apply his mind and thus the finding arrived at is perverse and violative of the mandatory provisions of the Panchayati Raj Act. He has further submitted that the petitioner, urged before the appellate authority that the Pub-Lali and Pachim-Lali fisheries fall within Jonai Mahkuma Parishad. A Map and letters dated 9-12-82 and 19-12-82 issued by the government were also filed. According to the petitioner, the Pub-Lali and Pachim-Lali fisheries do not fall within the jurisdiction of the Brahmaputra Part III, IV and V Fishery Society Ltd. 21. Dr. M. K. Sarma, learned counsel for 6th Respondent has submitted that the 6th Respondent urged before the Appellate Authority that the petitioner misled the government in his application for extension of lease stating that he was not a settlement holder of Pachim-Lali fishery and besides, the 1st Respondent has no power of extension. According to him, the survey report submit-ted by the Joint Director of Survey, Assam, vide letter No. 148 dated 28-3-88 clearly showed that there was no "suti" or "river" named Lali in the region, therefore, Jonai Mahkuma Parishad had no authority to give settlement of such fishery. 22. On these submissions, the 2nd Res-pondent considered the entire facts. According to him, the survey report submit-ted by the Joint Director of Survey, Assam, vide letter No. 148 dated 28-3-88 clearly showed that there was no "suti" or "river" named Lali in the region, therefore, Jonai Mahkuma Parishad had no authority to give settlement of such fishery. 22. On these submissions, the 2nd Res-pondent considered the entire facts. Relying on the report of the Joint Director of Survey dated 28-3-88 and other materials on record, the Appellate Authority came to the conclu-sion that there was no "suti" or "river" in the name of Lali existing in the said region. The Appellate Authority further held that in the absence of any such "suti" or "river" in the name of Lali in that region, as would appear from the report, the settlement given by Jonai Mahkuma Parishad was wrong and illegal and the same could not be allowed to be continued in the public interest. The Appel-late Authority also found that "there being no "suti" or "river" in the name of Lali (Pub/Pachim Lali) in that region, the settlement of such fishery would unnecessarily cause haras-sment and dispute." The Appellate Authority further found that the "same area was settled with the Brahmaputra Part-III, IV and V Society for a certain period, and, therefore, another Department or authority cannot settle the said fishery under different name and style for the same period or part and this would be contrary to the provisions of law". The Appellate Authority also found that the settlement given to "the Society" was in order and the area given for fishing to them was as per the prescribed schedule, and, therefore, the extension given to the petitioner for Pub-Lali and Pachim-Lali Fishery for two years was found to be illegal. 23. On perusal of Annexure-F order dated 19-9-91 it is seen that the Appellate Authority arrived at the conclusions after considering all the aspects of the matter and held that the order of extension of settlement given to the petitioner for the period 1990-92 was illegal. It came to the finding after considering the records available before it. We do not find any infirmity in such finding. In the result, we find no merit in the petition and accordingly it is dismissed. No order as to costs. Petition dismissed.