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1998 DIGILAW 285 (GAU)

Md Abdul Khalek v. State of Assam

1998-09-15

D.BISWAS

body1998
The question which calls for adjudication in this petition is whether an extension of lease of a fishery for a period of one and half years given to the petitioner on payment of 40% extension fee on consideration of his representation could be reviewed and cancelled by the State without giving an opportunity to the petitioner of being heard. 2. It would appear that the petitioner was settled with Pabha Game Reserve Fishery Mahal No. 1 vide order dated 29.3.90 (Annexure 1) on payment of Rs. 55,555.00 for aperiod expiring on 13.12.96 risk-sale basis. The petitioner sustained loss due to reasons beyond his control, and this prompted him to file representation before the appropriate authority for extension of settlement of the said Mahal for a period of two years. Recommendations were made to consider his case by the Conservator of Forests, Northern Assam Circle, Tezpur and also by the Chief Conservator of Forests (T), Assam. Thereafter, vide order dated 27.4.98 (Annexure 6), extension was given for one and half years from the date of actual possession of the Mahal in favour of the petitioner on payment of 40% extension fees. But a few days thereafter, the Government vide order dated 8.5.98 (Annexure 7) cancelled the said extension order and settled the Mahal with one Shri Sunanda Das who has been impleaded in this writ petition as respondent No.5. 3. Learned counsel appearing for the petitioner submitted that the order passed by the Govt. extending the periods of settlement is within the provisions of Rule 21 of the Assam Sale of Forest Produce Coupes and Mahal Rules, 1977 and this order cannot be reviewed by the Govt." in absence of a petition under Rule 9 and also without hearing the petitioner. Learned counsel further pointed out that the impugned order suffers from the vice of bias as the Mahal was settled with the respondent No.5 by the same order dated 8.5.98 without recording any reasons for such action. 4. It is important to mention here that the Govt. has not filed any counter in this case. However, the respondent No.5 submitted a counter justifying the propriety of the order of cancellation and settlement of the Mahal in his favour. 5. 4. It is important to mention here that the Govt. has not filed any counter in this case. However, the respondent No.5 submitted a counter justifying the propriety of the order of cancellation and settlement of the Mahal in his favour. 5. Shri N. Dutta, learned counsel for the respondent No.5, however, pointed out that the petitioner was given settlement of the Mahal on 'risk sale' and it was not purported to be a regular settlement in complianace with the provisions of the Assam Sale of Forest Produce Coupes and Mahal Rules, 1977. The settlement was given for the period of 1992-94 and, long after its expiry, he had submitted representation on 7.3.97 for extension of the fishery for two years. It was only on 27.4.98, the extension was given to the petitioner for a period of one and half year with the direction that the said period will reckon from the date of possession of the Mahal given to the petitioner. Pointing out the above facts, the learned counsel submitted that a settlement which was not in existence could not be extended by the Governor in exercise of the powers under Rule 21 of the Rules, 1977. Shri Dutta referring to a decision of the Division Bench of this High Court in Sri Jaganath Urang vs. State of Assam & others, (1985) 2 GLR 38, argued that the purported order of extension issued by the Govt. vide Annexure 6 is voidab initio and, therefore, the petitioner cannot insist that this cancellation ought to have been preceded by a hearing. In para7,Xhe Division Bench held as follows: "7. Let us consider the meaning of the term 'extension' in the context of Rule 21 of 'the Rules'. Could the Governor extend the period of lease of a 'mahal1 after the expiry of the period of lease ? The word 'extension' as used in the Rule connotes the existence of something to be extended. When the term of the lease has not expired the same may be extended. The Governor has the said power under Rule 21 of 'the Rules'. However, if the period of the original lease is over it does not appear that the Governor could extend the period. It would amount to grant of a fresh lease after the expiry of the period of the original lease. The Governor has the said power under Rule 21 of 'the Rules'. However, if the period of the original lease is over it does not appear that the Governor could extend the period. It would amount to grant of a fresh lease after the expiry of the period of the original lease. On a careful scrutiny of Rule 21 we find that the Governor has not been empowered to 'grant fresh lease' on the expiry of the term of the original lease. It would amount to granting "a new lease for a subsequent period which is not contemplated in Rule 21. The meaning of the term 'extension" came up for consideration is State vs. Graves, 352 Mo. 1102, 182 SW 2d 46 (51). It has been held therein that the term 'extension' means the existence of something to be extended. When the original lease was not in existence we are constrained to hold that the Governor is powerless to grant any extension under Rule 21 of 'the Rules'." The decision above leads to the only conclusion that the extension of the Mahal given to the petitioner vide Annexure 6 is beyond the scope of the provisions of Rule 21 of the Fishery Rules, 1977 and, as such, it cannot be a ground swell for a petition under Article 226 of the Constitution. 6. Shri Dutta also argued that this Court may not exercise its jurisdiction under Article 226 of the Constitution to set aside the order of cancellation at Annexure 7 in order to bring into force an otherwise illegal and void order ie Annexure 6. On this point, reliance has been placed on a decision of the Supreme Court in Gadde Venkateswara Rao vs. Govt. of Andhra Pradesh & others, AIR 1966 SC 828 . In the aforesaid judgment, the Supreme Court found no justification to interfere with the judgment passed by the High Court refusing to quash the impugned order on the ground that such order would have restored an otherwise illegal order. A Division Bench of this High Court in Haren Hazarika vs. State of Assam & others, (1991) 2 GLR 384(1991 (1) GLJ 78) relying on the aforesaid decision of the Supreme Court, refused to exercise the powers under Article 226 of the Constitution in a case with similar background relating to settlement of fishery. 7. A Division Bench of this High Court in Haren Hazarika vs. State of Assam & others, (1991) 2 GLR 384(1991 (1) GLJ 78) relying on the aforesaid decision of the Supreme Court, refused to exercise the powers under Article 226 of the Constitution in a case with similar background relating to settlement of fishery. 7. In the given circumstances of the case, the cause of justice does not permit any departure from the established principle of law although both Annexure 6 and 7 are illegal and void. Hence, I decline to issue a writ as prayed for. 8. In the result, the writ petition is dismissed. The order dated 20.5.98 directing the maintenance of status quo stands vacated. The parties are to bear their respective costs.