Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 182 (GAU)

Rabin Das v. State of Assam

2005-03-03

R.B.MISRA

body2005
JUDGMENT R.B. Mishra, J. 1. Heard Mr. R. C. Saikia, learned counsel for the petitioner and Ms. B. Chakraborty, learned counsel for the Respondent No. 5 and also Mr. K. C. Mahanta, learned Standing counsel, Government of Assam. 2. The question of considering the prayer for quashing the order dated 16.8.2003 (Annexure-9 to the writ petition) whereby the settlement of fisheries-business for 5 years i.e. from 1.4.2003 to 31.3.2008 was made in favour of respondents in terms of the provisions of Rule 12 of the Assam Fisheries Rules, 1953 (in short called Rules hereinafter) in favour of an individual or in favour of 'Society' constituting members of 100% fisherman community of neighbouring area. It appears that the petitioner for his Society along with others came forward with their claims and the reports in respect of the antecedent's financial condition and their eligibility of participants were considered. The petitioner was initially indicated to be financially not sound, however, said remark was said to be inadvertently made as by subsequent letter dated 17.5.2003 (Annexure-8 to the writ petition) from the Deputy Commissioner, Marigaon, Department of Fisheries, Government of Assam, earlier remark was rectified with clear indication that the petitioner was having a sound financial back ground. According to the petitioner ignoring his claim the settlement of fisheries was made jointly in favour of the respondent Nos. 4, 5 and 6 overlooking to the fact that, members of the Respondent No. 6, i.e. M/s Kusumpur Pakaria Meen Samabai Samity were found to be defaulter as revealed from report dated 3.7.2003 (Annexure-5 to the writ petition) whereas, the petitioner's claim was rejected solely on the ground that the financial position of the petitioner society was not sound. According to the petitioner, at the time of making order dated 16.8.2003 the report about petitioner's good financial ground in view of the letter dated 17.5.2003 was not even considered for reasons best known to the authorities. According to the petitioner, settlement of fisheries other than tender system could be made in consonance to the provision of Rule 12 of 'Rules'. 3. For reference the relevant provision of 'Rule' 12 is quoted below : "12. According to the petitioner, settlement of fisheries other than tender system could be made in consonance to the provision of Rule 12 of 'Rules'. 3. For reference the relevant provision of 'Rule' 12 is quoted below : "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 Fishery Cooperative 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." 4. On the other hand according to the learned counsel for the respondents, members of the petitioner's society were neither from neighbouring area nor 100 per cent from fishermen community, therefore they are not entitled for settlement of fishery, however, these aspects were not the issue for adjudication in the order dated 16th August, 2003. 5. I have heard the learned counsel for the parties and I find that the impugned order dated 16.8.2003 was passed mainly in reference to a point, which was non-existent or was in correct from the records, therefore, the said decision cannot be allowed to be legally sustainable. Fishery is the government property over which the State Government has full control and the fishery business could be settled by public auction only. Alternatively by direct settlement provided under 'Rule 12' to be made in favour of the claimant of 100 per cent fishermen community from the neighbourhood in view of the decision of Mongoldoi Pioneer Fishery Cooperative Society Ltd. v. State of Assam 1996 (3) GLT 547 and undoubtedly proviso to Rule 12 makes it clear that the Government can give direct settlement only to the registered Cooperative Fisheries Society subject to fulfilment of requirements provided there in view of the decision of this Court 1998 (2) GLT 74 (Unemployed Youth Firm v. State of Assam). The proviso to 'Rule 12' is a meaningful in its object as it was inserted in 'Rule 12' authorising to secure livelihood of the members of the cooperative society having 100 per cent actual fishermen belonging to Scheduled Caste only who hail from the neighbourhood area in view of the decision of this Court 1997 (1) GLT 276 (Luhit Era-Suit Mach Mahal Samabaye Samity v. State of Assam). If the soundness of financial condition of participants/claimants are to be considered the same should be in consonance to the report or record. 6. In view of the observations made above, the order dated 16.8.2003 is set aside and the matter is sent back to the State Government to make afresh settlement of the fishery for area in question to the eligible persons strictly in consonance to the provision of 'Rule 12' 'Rules', and in the meantime the State Government may manage as deem fit and suitable keeping with the paramount interest of the State revenue. The said settlement may be made within three months from the date of receipt of the certified copy of this judgment.