Chatanguri Meen Samabai Samity Ltd. v. State of Assam
2005-08-24
I.A.ANSARI
body2005
DigiLaw.ai
JUDGMENT I.A. Ansari, J. 1. By making this writ petition, M/s Chatanguri Meen Samabai Samity Limited (hereinafter referred to as 'the Petitioner society'), which is a registered Co-operative Society under the Assam Co-operative Societies Act, has sought for issuance of appropriate writ(s) setting aside and quashing the order, dated 5.6.04, issued by the Respondent No. 2 setting the 49/51 Patuakata/Salakata/Morsonai Group Fishery in favour of Respondent No. 5, namely, M/s. Satgaon Jalgutha Matshyajibi Samabai Samity Limited, Morigaon (hereinafter referred to as "the Respondent society"), which too is a society registered under the Co-operative Societies Act, and for further direction to the said Respondents to settle the said fishery in favour of the Petitioner society. 2. I have heard Mr. A.M. Mazumdar, learned Senior Counsel, assisted by Mr. M. Nath, learned Counsel, for the Petitioner society, and Mr. H.K. Mahanta, learned Government Advocate, appearing on behalf of the State Respondents. I have also heard Mr. A.K. Goswami, learned Senior counsel, for the Respondent society. 3. Certain facts, which are not in dispute, may, in brief, be noted as follows: Both the said societies comprise of 100% fishermen belonging to the Scheduled Caste communities. The Respondent society was settled with the said fishery by the State Government under the proviso to Rule 12 of the Assam Fishery Rules, 1953, for a period of 3 years w.e.f. 07.03.2001 to 06.03.2004. As the settlement made in favour of the Respondent No. 5 was to an end on 06.03.2004, the Petitioner society, which also consists of 100% actual fishermen of the Scheduled Caste communities, applied, on 07.02.2004, for settlement of the said fishery. By order, dated 05.06.2004, the Government settled the fishery in favour of the Respondent society for a period of 7 years w.e.f. 04.06.2004 to 03.06.2011. Pursuant to the order, so passed, the Respondent society has taken the possession of the said fishery and has been operating the same. 4. The case of the Petitioner society is that the Petitioner society is located in the 'neighbourhood' of the said fishery, whereas the Respondent society is not located in the 'neighbourhood' of the said fishery.
Pursuant to the order, so passed, the Respondent society has taken the possession of the said fishery and has been operating the same. 4. The case of the Petitioner society is that the Petitioner society is located in the 'neighbourhood' of the said fishery, whereas the Respondent society is not located in the 'neighbourhood' of the said fishery. This apart, according to the Petitioner society, the financial condition of the Petitioner society is sound; but the financial condition of the Respondent society is not sound inasmuch as a Bakijai proceeding was pending for recovery of arrear of revenue against the Respondent society at the time, when the impugned order of settlement was made in favour of the Respondent society. 5. As can be discerned from the facts stated above, the challenge to the impugned order of settlement is, broadly speaking, on two grounds, namely, that the Respondent society is not located in the 'neighbourhood' of the fishery, in question, and that the financial condition of the Respondent society is not sound. Both these assertions of the Petitioner society have been vehemently disputed by the Respondent society. 6. Bearing in mind the above two grounds on which stand challenged the settlement made in favour of the Respondent society in the present writ petition, let me turn to the impugned order. The relevant portion of the impugned order, dated 05.06.2004, whereby the said fishery was settled with the Respondent society, reads as follows: After perusal of all the reports of Deputy Commissioner, Morigaon it appears that M/s Satgaon Jalgutha Matshyajibi SS Ltd. is more suitable for getting settlement of the fishery. M/s Satgaon Jalgutha Matshyajibi SS Ltd. The sitting lessee of the fishery in question is composed of 100% actual fishermen belonging to scheduled caste community and the members of the society reside nearer to the area of operation. The financial position of the society is sound. There is no Bakijai Case against the society. The society has released fish seeds about 4.6 lakhs during the year 2003. The Deputy Commissioner, Morigaon has strongly recommended the society for settlement of the fishery in question. In view of above, in exercise of powers conferred under Rule 12 of the Assam Fishery Rules, 1953 and amended, the Governor of Assam is pleased to settle the No. 49/51 Patuakata/Dhaluakata/Salkata/Morsonai Group Fishery of Morigaon Dist.
The Deputy Commissioner, Morigaon has strongly recommended the society for settlement of the fishery in question. In view of above, in exercise of powers conferred under Rule 12 of the Assam Fishery Rules, 1953 and amended, the Governor of Assam is pleased to settle the No. 49/51 Patuakata/Dhaluakata/Salkata/Morsonai Group Fishery of Morigaon Dist. with M/s Satgaon Jalgutha Matshyajibi SS Ltd. For a period of 7 years w.e.f. 4.6.2004 to 3.6.2011 at an enhanced revenue of 10% over the existing revenue. 7. A careful reading of the impugned order shows that for the purpose of granting of settlement in the present case, four important aspects had been considered by the Respondents/authorities concerned, namely, (i) as to who were the members of the Respondent society, (ii) what was the financial condition of the Respondent society, (iii) where was the location of the Respondent society and (iv) the effect of the fact that the Respondent society had already released a large number of fish seeds during the subsistence of their previous lease. 8. Let me, first, deal with the question as to whether the materials on record indicated that at the time of granting of the settlement on 05.06.2004, the Respondent society's financial condition was not sound. While considering this aspect of the matter, it is pertinent to note that the materials on record clearly reveals that the Respondent society was issued, on 13.01.2004, a certificate by the Bakijai Branch of the establishment of the Deputy Commissioner, Morigaon, showing that no Bakijai Case was pending against the society. This certificate was valid for three months. On 09.03.2004, i.e., within three months, another certificate was, however, issued by Bakijai Officer concerned showing that a Bakijai Case was pending against the said society for recovery of Rs. 14,857/- as unpaid revenue. Thereafter, on 16.03.2004, setting at rest the controversy whether a Bakijai proceeding was pending against the Respondent society or not, the Sub-Divisional Officer (Sadar), Morigaon, issued a certificate showing that the said amount had already been paid and the Bakijai proceeding stood dropped. This certificate reveals that on 05.06.2004, when the State Respondents considered the matter and passed the interim order, the materials on record indicated that no Bakijai proceeding was pending against the Respondent society.
This certificate reveals that on 05.06.2004, when the State Respondents considered the matter and passed the interim order, the materials on record indicated that no Bakijai proceeding was pending against the Respondent society. For forming the view that the financial condition of the society is sound, the State Respondents had relied, inter alia, on the fact that no Bakijai Case was pending, at the relevant point of time, against the said society. The decision based on such a consideration as regards the Respondent society's financial condition cannot be said to be arbitrary. 9. Coupled with the above, the report, dated 08.03.2004, of the Assistant Registrar of the Co-operative Societies, addressed to the Deputy Commissioner, reveals that the balance sheet of the Respondent society for the year, as on 29.04.2004, showed that the financial position of the Respondent society was developing since April, 2003, and the Respondent society had made profits as on 04.03.2004. This report further indicates that the Respondent society was able to repay its arrear revenue of Rs. 14,857/- and that the financial condition of the society was sound. Thus, in the face of these materials on record, on 05.06.2004, when the State Respondents took the view that the financial condition of the Respondent society was sound, their view cannot be said to be arbitrary, without any basis, irrational and/or suffering from non-application of mind. Similarly, the consideration of the fact that the Respondent society had already released fish seeds, as many as 4.6 lakhs in number, during the year 2003 cannot be said to be a wholly irrelevant factor, while considering the question of granting of the period of settlement of the Respondent society. The fact that the Respondent society consists of 100% actual fishermen belonging to the Scheduled Caste communities is not in dispute and was correctly taken note of by the State Respondents, for the purpose of determining the question as to whether the power of granting of settlement under the proviso to Rule 12 can be exercised or not in favour of the Respondent society. 10. Let me, now, turn to the question of location of the two rival societies vis-a-vis the fishery. In this regard, I have already pointed out above that according to the Petitioner society, the members of the Respondent society do not reside in the 'neighbourhood' of the said fishery.
10. Let me, now, turn to the question of location of the two rival societies vis-a-vis the fishery. In this regard, I have already pointed out above that according to the Petitioner society, the members of the Respondent society do not reside in the 'neighbourhood' of the said fishery. While the Petitioner society relies on a report, dated 06.03.2004 (Annexure 2 to the writ petition) of the Assistant Registrar of the Co-operative Societies, Morigaon, addressed to the Deputy Commissioner, Morigaon, wherein it is stated that the members of the Respondent society do not reside in the 'neighbourhood' of the said fishery and that the said fishery is located at a distance of about 6 km. from the location of the said society, the Respondent society relies on a letter, dated 14.05.2004 (Annexure 4 to the writ petition), issued by the Deputy Commissioner, Morigaon, addressed to the Commissioner and Secretary to the Government of Assam, Fishery Department, to show that the location of the Petitioner society is at a distance of about 4 km. from the said fishery. 11. Thus, it is clear that the question as to whether the Petitioner society is or is not located within the 'neighbourhood' of the fishery and/or the question as to whether the Respondent society is or is not located within the 'neighbourhood' of the fishery are both questions of fact. Since these questions of fact are intensely disputed and the same require taking of evidence and/or holding of enquiry, it will be neither permissible nor desirable that such a question be allowed to be raised and determined in a writ petition. I would have, therefore, refrained from entertaining the present writ petition, but for the reasons discussed hereinafter. 12. A direct settlement of fishery is, admittedly, granted by the Government under the proviso to Rule 12 of the Assam Fishery Rules, 1953. It is, therefore, necessary to take note of the contents of Rule 12 and, particularly, the proviso thereto, which runs as follows: 12.
12. A direct settlement of fishery is, admittedly, granted by the Government under the proviso to Rule 12 of the Assam Fishery Rules, 1953. It is, therefore, necessary to take note of the contents of Rule 12 and, particularly, the proviso thereto, which runs as follows: 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 Co-operative 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. 13. A careful reading of the proviso to Rule 12 shows that one of the conditions precedent for granting of settlement under the proviso to Rule 12 is that the members, constituting the society, shall all be actual fishermen of the fishing population in the 'neighbourhood' of the fishery concerned. This, in turn, means that the members, who so constitute the society, shall be residing in the 'neighbourhood' of the fishery concerned. The society may be formed by the inhabitants of a place 'X', but the area of its operation may be at a place 'Y'. Similarly, there can be a society, whose members are from a place 'X' and the area of operation of the society is also at the place 'X'. What the proviso requires the State Government to ensure is that the society is formed by fishing population of the 'neighbourhood' of the fishery concerned. Considered from this angle, it is immaterial for the purpose of exercising the power under the proviso to Rule 12 as to where the area of operation of a society is. In other words, the crucial deciding factor in determining whether a society is in the 'neighbourhood' of the fishery concerned or not is the place, where the members, who form the society, reside. Noticing that confusion often arises as to how one shall determine the 'neighbourhood' aspect of the fishery for the purpose of complying with the proviso to Rule 12, a Division Bench of this Court in Shri Babul Das v. State of Assam and Ors.
Noticing that confusion often arises as to how one shall determine the 'neighbourhood' aspect of the fishery for the purpose of complying with the proviso to Rule 12, a Division Bench of this Court in Shri Babul Das v. State of Assam and Ors. reported in 1989 (1) GLR 263, observed, "One confusion is required to be cleared for future guidance of the settling authority. It has been noticed by this Court that while deciding a matter like one at hand, attention is paid to the area of operation of the Society whereas the proviso to Rule wants consideration of the fact as to whether a particular society is in the 'neighbourhood' of the fishery or not." 14. Clarifying as to what shall be the consideration under the proviso to Rule 12 when the question of location of a society vis-a-vis the fishery concerned is required to be answered. Reminded, in this regard, in no uncertain words, the Division Bench, in Shri Babul Das (supra) thus, "We would, however, reiterate that in future, while giving settlement under the proviso to Rule 12, the settling authority would apply its mind to the question whether the fishery is in the 'neighbourhood' instead of trying to ascertain its area of operation." 15. On reverting to the case at hand, I notice that the impugned order, dated 05.06.2004, aforementioned reads, inter alia, thus, "...the members of the society reside nearer to the area of operation." Thus, a microscopic reading of the impugned order makes it abundantly clear that what the State Respondents, while determining the question as to whether the Respondent society was located in the 'neighbourhood' of the fishery, in question, or not, took into account the area of operation of the Respondent society and not the residence of the members, who constitute the Respondent society. In other words, what the State Government considered, while passing the impugned order, is the area of operation of the Respondent society; whereas what it ought to have considered is as to where the members of the Respondent society resided. 16. While considering the term 'neighbourhood' appearing under the proviso to Rule 12, it is imperative to bear in mind that the term 'neighbourhood' does not convey any definite idea of distance. It is not to be measured by a measuring tape.
16. While considering the term 'neighbourhood' appearing under the proviso to Rule 12, it is imperative to bear in mind that the term 'neighbourhood' does not convey any definite idea of distance. It is not to be measured by a measuring tape. The difference, in the distance, of a few feet or several yards or even one or two kilometers would not really be material for the purpose of determining the question of 'neighbourhood'. A Division Bench of this Court in Brahmaputra Part II NACG Mach Mahal Samabai Samity v. State of Assam and Ors. reported in 2003 (1) GLT 155, while considering the meaning and scope of the word 'neighbourhood' appearing in the proviso to Rule 12, has observed as follows: 13. Turning to the aspect of 'neighbourhood', we feel that the expression needs interpretation so as to advance the object and purpose of the rules and not to frustrate it. As observed earlier, in a given fact situation, there may be more than one society in the 'neighbourhood' of the fishery. It may so happen that a society fulfilling the other conditions of the proviso and which is more deserving for such settlement is, distance wise, slightly further away from the fishery, than the other eligible societies. Will the object and purpose of the proviso be served if the former society is discarded only on the ground that though it is more deserving, the other societies are nearer to the fishery ? In other words, is the word "neighbourhood" to be interpreted in terms of inches, feet and yards or a more pragmatic and purposive, interpretation has to be provided thereto. The Black Law's Dictionary defines the word "neighbourhood" as a place near; an adjoining or surrounding district; a mere minimum vicinity; vicinage.... In ordinary and common usage 'locality' is synonymous in meaning with 'neighbourhood'. In the Law Lexicon by P. Ramanatha Aiyer, the word "neighbourhood" has been defined to signify nearness as opposed to remoteness. "Whether a place is in the 'neighbourhood' of another place depends upon no arbitrary rule of distance or topography. One house may be said to be in the 'neighbourhood' of another house and not structurally adjoin it.... 14. The term "neighbourhood" does not express any definite idea of distance. A few feet or several 100 yards or even a greater distance from an object would be in its 'neighbourhood'. 15.
One house may be said to be in the 'neighbourhood' of another house and not structurally adjoin it.... 14. The term "neighbourhood" does not express any definite idea of distance. A few feet or several 100 yards or even a greater distance from an object would be in its 'neighbourhood'. 15. Thus, no mathematical formula has been devised to define and measure 'neighbourhood'. Within the meaning attributed to the word as above, there is evidently an element of flexibility and, therefore, while dealing with the proviso to Rule 12 as above, it would, in our opinion, neither be permissible nor desirable to ascertain the 'neighbourhood' by a measuring tape. It the residence of the members of an otherwise eligible fishery Co-operative Society is in the vicinity and proximity of the fishery as is understood in common parlance, they are deemed to be in the 'neighbourhood' thereof. Any attempt to measure the 'neighbourhood' in terms of inches, feet, yards or centimeters and meters, would render the proviso outiose in a given fact situation. 17. From the above observations made in Brahmaputra Part II NACG Mach Mahal Samabai Samity (supra), what transpires, as already indicated above, is that there is really no mathematical formula to define and measure 'neighbourhood'. If the residence of the members of an, otherwise, eligible fishery Co-operative Society is in the vicinity and proximity of the fishery as is understood in common parlance, the society shall be deemed to be located in the 'neighbourhood' of the fishery concerned in order to enable the State to exercise powers under the proviso to Rule 12. 18. Made it also clear a Full Bench of this Court in Arabinda Das v. State of Assam reported in (1982) 1 GLR 280, that in the absence of the existence of the prerequisites for exercise of power under the proviso to Rule 12, the State Government has no authority to make settlement, for, the pre-requisites are indicative of the fact that the rule-making authority has given guidelines for the exercise of the power under the proviso and has not left the exercise of the power under the said proviso to the arbitrary discretion of the State. Advertising to the purpose with which the proviso to Rule 12 has been introduced, the Court, in Arabinda Das (supra), observed as follows: 20.
Advertising to the purpose with which the proviso to Rule 12 has been introduced, the Court, in Arabinda Das (supra), observed as follows: 20. ...The purpose behind the incorporation of the proviso to Rule 12 seems to be to give opportunity to the deserving actual fishermen of the locality who may be eminently suitable for settlement of the fishery, but their economic conditions may be such that they may not be in a position to compete with the other tenderers in settlement of fisheries under tender system. This proviso is really very wholesome, pragmatic and meaningful which is meant to secure settlement to the deserving actual fishermen of the 'neighbourhood' of the fishery. This proviso, in a sense, is an improvement on the old Rule 12. Now the State Government's power is to a certain extent circumscribed inasmuch as it can only exercise when the pre-requisites noted above are in existence but within that constricted sphere, its power is plenary. In our opinion, this is a piece of social legislation which is framed for the purpose of giving opportunity to the listed class of persons mentioned in the proviso to Rule 12, in the matter of their avocation. 19. What follows from the above observations made in Arabinda Das (supra) is that since the purpose behind incorporating the proviso to Rule 12 is to give opportunity to the deserving actual fishermen of the locality concerned, what the State shall, while deciding the question of granting of settlement under the proviso to Rule 12, determine is as to where the 'actual' fishermen, in question, really reside. If they reside in the vicinity of the fishery concerned, they would be eligible for consideration under the said proviso subject, however, to the condition that the other pre-requisites for taking recourse to the proviso stand satisfied. 20. While exercising the power of judicial review under Article 226, when the Court is required to examine the question of 'neigbourhood', the Court is not expected to examine the question of 'neighbourhood' with factual details. All that the Court can examine is as to whether the requirement of 'neighbourhood', as prescribed and envisaged under the proviso to Rule 12, was present in the mind of the settling authority.
All that the Court can examine is as to whether the requirement of 'neighbourhood', as prescribed and envisaged under the proviso to Rule 12, was present in the mind of the settling authority. To put it differently, what is required to be determined, while exercising the power under Article 226 of the Constitution, is as to whether the State Government was alive to the requirements/conditions precedent for exercise of the power under the proviso to Rule 12. If the settlement order reflects that all prerequisites of the proviso to Rule 12 have been considered by the Government, the writ Court will not be justified in undertaking an exercise of measuring the distance, in question, between two competing claimants vis-a-vis the fishery concerned. This aspect of the matter has been succinctly expressed in Majorati Meen Samabai Samity Ltd. v. Sukhraj Meen Samabai Samity Ltd. and Ors. reported in 1998 (1) GLT 405, in the following words: The question of 'neighbourhood' and area of operation has been the subject matter of debate and discussions in several judgments and even the learned Single Judge has also made a reference to it, towards end of the judgment, indicating as to what is meant by 'neighbourhood' in the context of Rule 12. Without disputing the proposition, here again, the question that falls for consideration is one of the extent and scope of judicial review whether this Court in exercise of its power under Article 226 examine the question of 'neighbourhood' with such minutest factual details as to measure every inch of the distance at which a society is situated. It is something to be measured in foot and inches, all that this Court extending the writ jurisdiction such an extent would be nothing sort being violent to the Article 226 of the Constitution, all that the Court can examine as to whether the condition and requirements of 'neigbourhood', as prescribed under the rules, it was present to the mind of the settling authority. It is not expected that the writ Court would be the Surveyor and measure the distance in meter and centimeter. If the Settling Authority is alive to the requirements of the rules and the same is reflected in the order of settlement of a fishery, the writ Court will not be justified and undertaking an exercise of measuring the distance between two competent claimants.
If the Settling Authority is alive to the requirements of the rules and the same is reflected in the order of settlement of a fishery, the writ Court will not be justified and undertaking an exercise of measuring the distance between two competent claimants. After all "neighbourhood" is a relative term which is to be taken into account alongwith other conditions. It is not the intent of rules to treat 'neighbourhood' with geometrical altitude and procedure. 21. What logically follows from the above discussion and the law laid down in Majorati Meen Samabai Samity Ltd. (supra) is that when the State Government, while giving settlement, omits to consider one of the pre-requisites, which can enable it to exercise the powers under proviso to Rule 12, the writ Court may, in an appropriate case, be justified in interfering with such a decision. 22. Turning, once again, to the case at hand, it is, if I may reiterate, abundantly clear that while passing the impugned order, 05.06.2004, the State Government has not considered the question of the residence of the members of the Respondent society; what it has considered is the area of operation of the Respondent society. 23. What logically follows from the above discussion is that the consideration as to what the area of operation of the Respondent society was wholly irrelevant and the relevant question was as to where the members of the Respondent society really resided. If the members of the Respondent society reside within the 'neigbourhood' of the said fishery, then, they would be eligible for consideration under the proviso to Rule 12; but if the members of the Respondent society reside not in the 'neighbourhood' of the fishery, the mere fact that the area of operation of such a society is near the fishery, in question, the same would be immaterial. 24. What crystallizes from the above discussion is that the State Respondents did not consider the relevant factor, namely, the residence of the members of the Respondent society, while granting the settlement by the impugned order, dated 05.06.2004; what the State Respondents considered was an irrelevant factor, such as, the area of operation of the Respondent society.
24. What crystallizes from the above discussion is that the State Respondents did not consider the relevant factor, namely, the residence of the members of the Respondent society, while granting the settlement by the impugned order, dated 05.06.2004; what the State Respondents considered was an irrelevant factor, such as, the area of operation of the Respondent society. Viewed from this angle, the consideration of an irrelevant factor, such as, area of operation and exclusion from the purview of consideration a relevant and material factor, such as, the residence of the fishing population vitiated the decision making process and must, therefore, be interfered with. At the same time, what is also important to bear in mind is that the Respondent society had already released fish seeds as much as of 4.6 lakhs in number and, hence, if a finding is reached tomorrow by the State Respondents that the members of the society reside in the 'neighbourhood' of the said fishery, but, if, in the meanwhile, the settlement granted in favour of the Respondent society is set aside, the Respondent society, which consists of fishermen, may suffer irreparable loss. 25. Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the Secretary to the Government of Assam, Department of Fishery, shall, after giving an opportunity of hearing to the Petitioner as well as the Respondent society, determine if the members of the Respondent society reside in the 'neighbourhood' of the said fishery. If the decision be in favour of the Respondent society, the impugned order, dated 05.06.2004, shall not be disturbed; but if the decision be that the members of the Respondent society does not reside in the 'neighbourhood' of the said fishery, then, the impugned order, dated 05.06.2004, shall be cancelled. For maintaining the impugned order, 05.06.2004, or for cancelling the same, the authority aforementioned shall, in either of the two eventualities, assign reasons for the decision that it may reach. For the purpose of coming to a correct decision, the authority concerned shall be at liberty to obtain any such report(s) from any such authority/authorities as may be necessary. The whole exercise, so directed, shall be completed within a period of three months from today. Whatever decision is reached by the authority concerned shall be communicated, in writing, to both the Petitioner as well as the Respondent society.
The whole exercise, so directed, shall be completed within a period of three months from today. Whatever decision is reached by the authority concerned shall be communicated, in writing, to both the Petitioner as well as the Respondent society. If any of the said two societies feels aggrieved by the decision that may be reached by the authority concerned, the aggrieved society shall be at liberty to take recourse to appropriate provisions of law. 26. Furnish a copy of this order to the learned Government Advocate for ensuring compliance of the directions given hereinabove. 27. No order as to costs.