Haria Dublong Meen Samabay Samiti Ltd. and Anothers v. State of Assam and Ors.
2002-05-31
R.S.MONGIA, RANJAN GOGOI
body2002
DigiLaw.ai
R.S. MONGIA, CJ- Heard Mr M. Talukdar, learned counsel for the appellants and Mr A.K. Goswami, learned counsel for respondent No. 5. 2. The brief facts giving rise to this appeal may be noticed. The appellant, M/ s 129 Haria Dublong Meen Samabay Samiti Ltd., is a registered co-operative society and it is alleged that the society consists of 100% fishermen belonging to Scheduled Castes community. The fishery, No. 129 Haria Dublong Fishery, had been settled in favour of the appellant society by the State Government by order dated 19.11.1999 for a period of seven years after cancelling the then existing lease which had been granted by the Assam Fisheries Development Corporation Ltd. (hereinafter referred to as the Corporation) for a period of seven years ending in 2006. The appellant society deposited Rs.4131/ - as security and also paid instalments for the period ending on 18.11.2000. The settlement in favour of the appellant was challenged by respondent No. 5 by filing WP(C) No. 5828/1999. The said writ petition was disposed of on 21.8.2000 quashing the settlement in favour of the petitioner and the case was referred back to the authority for settlement afresh within a period of two months permitting the appellant society to continue during the interim period. 3. The appellant society had filed a petition dated 5.9.2000 before the Secretary to the Government of Assam, Fisheries Department for settlement of the aforesaid fishery. (It is stated by the learned counsel for the appellant/writ petitioner that a petition was also made to the Corporation). However, the .State Government, vide order dated 23.10.2000 settled the fishery with respondent No. 5 for a period of five years ending in 2005. This settlement order made by the State Government in favour of respondent No. 5 was challenged by the present appellant (writ petitioner) by filing WP(C) No. 6001/ 2000. The writ petition has been dismissed and the settlement in favour of respondent No. 5 has been upheld by the learned Single Judge, vide judgment and order dated 3.1.2002. It was held that respondent No. 5 was not a defaulter and no fault could be found in the settlement by the State Government in favour of respondent No. 5.
The writ petition has been dismissed and the settlement in favour of respondent No. 5 has been upheld by the learned Single Judge, vide judgment and order dated 3.1.2002. It was held that respondent No. 5 was not a defaulter and no fault could be found in the settlement by the State Government in favour of respondent No. 5. A point was also raised before the learned Single Judge that pursuant to notification dated 22.11.95 issued by the State Government, the fishery in question came to be vested in the Corporation and, therefore, the management etc. which will include settlement, had to be done by the Corporation and not by the State Government. This point of the appellant (writ petitioner) was repelled by the learned Single Judge by observing that the notification dated 22.11.95 does not appear to have been issued in exercise of the powers under sub-clause (c) (ii) of Rule 8 of the Assam Fishery Rules and, therefore, the statutory powers of direct settlement or extension of any settlement under the proviso to Rule 12 are plenary powers which vest in the State authority. The same point has been reiterated before us. However, we may state that the notification itself has not been brought on record. 4. There were conflicting Division Bench judgments of this Court as to whether the power of settlement vests in the State Government or the Corporation. The Division bench judgments are:- (1) M/ s. Agragati Matshyajibi Samabai Samity Ltd.-Vs-State of Assam and others, Civil Rule No. 5408/96', (2) Writ Appeal Nos. 161/95 and others, decided on 26.11.96; (3) Review Petition No. 30/97, arising out of Writ Appeal No. 373/96. This led to the Constitution of a Full Bench and the Full Bench, vide judgment dated 4.4.2001 in Writ Appeal No. 260/1999 and others, (M/ s. 129 Haria Dub long Min Mahal Samabai Samity Ltd.-Vs-Assam Fisheries Dev. Corporation Ltd. and others), now reported as (2001) 1 GIT 454, has taken the view that after issuance of a notification under Rule 8C(ii) of the Assam Fishery Rules vesting a particular fishery in the Corporation, it will be the Corporation which will be the authority to make the settlement. 5.
Corporation Ltd. and others), now reported as (2001) 1 GIT 454, has taken the view that after issuance of a notification under Rule 8C(ii) of the Assam Fishery Rules vesting a particular fishery in the Corporation, it will be the Corporation which will be the authority to make the settlement. 5. Though there was no specific challenge as such to the notification dated 22.11.95, yet the learned Single Judge in the impugned judgment held that the said notification did not appear to have been issued under Rule 8C(ii) of the Assam Fishery Rules. Apart from the fact that the notification has not been produced before us and we cannot opine whether the said notification was issued under Rule 8C(ii), we will assume it to be so for the view we are taking in the matter. The earlier settlement in favour of the appellant (writ petitioner) was also by the State Government for a period of seven years, which was granted on 19.11.99, i.e., that was prior to the judgment of the Full Bench. While setting aside that settlement in favour of the appellant (writ petitioner) in Civil Rule No. 5828/1999, the matter was referred back to the authority. In our view, the 'authority' meant the same authority which had settled the fishery in favour of the appellant (writ petitioner), which was challenged in Civil Rule No. 5828/1999. Further, the writ petitioner also made an application to the State Government for resettlement of the fishery, apart from making an application to the Corporation, as stated by the learned counsel for the appellant. 6. Be that as it may, we do not subscribe to the view as projected by the learned counsel for the appellant that even prior settlements to the judgment of the Full Bench which might have been done by the State Government would automatically become illegal after the judgment rendered by the Full Bench. Since there was conflict on this point, the Full Bench resolved that on 4.4.2001. It would mean that the doctrine of prospective overruling would come into play and only those settlements by the State Government would be invalid after the judgment of the Full Bench in which there is a valid notification in favour of the Corporation vesting the fishery in the Corporation.
It would mean that the doctrine of prospective overruling would come into play and only those settlements by the State Government would be invalid after the judgment of the Full Bench in which there is a valid notification in favour of the Corporation vesting the fishery in the Corporation. In the present case, the settlement had been done in favour of respondent No. 5 on 23.10.2000, i.e., prior to the judgment of the Full Bench dated 4.4.2001, and even if the notification dated 22.11.95 is held to be good, it will not affect the settlement made by the State Government prior to 4.4.2001, i.e., the date of judgment of the Full Bench. 7. For the foregoing reasons we find no merit in this writ appeal. 8. Dismissed.