PUB Goalpara Fishery Co-operative Ltd v. State of Assam
2016-01-19
MANOJIT BHUYAN
body2016
DigiLaw.ai
ORDER Manojit Bhuyan, J. (CAV) - The petitioner is a Co-operative Society comprising of 100% actual fishermen of Scheduled Caste community, duly registered under the Assam Cooperative Societies Act, 1949 (as amended) and located in the neighbourhood of 1/77 Dighdhar Brahmaputra Fishery under Goalpara District. The said fishery is a 60% category fishery in terms of Explanation 2 to Rule 12 of the Assam Fishery Rules, 1953. The respondent no.4, which the petitioner claims to be a defunct Cooperative Society, is impleaded as party respondent due to grievance raised in respect of granting extension of lease of the fishery to it by flouting Government norms and without due application of mind. In the present proceedings, the respondent no.2, i.e. the Deputy Commissioner, Goalpara as well as the private respondent no. 4 has responded to the writ petition by filing affidavit-in-opposition. The records in original have also been produced by Mr. B.J. Talukdar, learned State Counsel. 2. A brief look at the events occurring prior to the cause of action necessitating institution of the present case would show that the petitioner had earlier filed W.P(C) 6392/2006 praying for consideration of its case in respect of settlement of the fishery in question. The said case was disposed of on 21.12.2006 with direction to the state respondents to look into the representation filed before it by the petitioner and to dispose of the same in accordance with law. Subsequently, W.P(C) 1891/2007 came to be instituted by the petitioner challenging the order of settlement dated 7.4.2007 made in favour of the respondent no.4. The grounds urged in the said writ petition were that the respondent no.4 is a defunct Cooperative Society and not in operation since the year 2000. Also, the respondent no.4 is not located in Goalpara District and apparently not in the neighbourhood of the fishery in question. The said writ petition came up for final disposal on 7.8.2013 and in the order so passed this Court observed that the term of settlement made in favour of respondent no.4 would expire within a couple of months and that there was no formal settlement of the fishery with the respondent no.4, in that, the said respondent has been allowed to operate the fishery without any agreement etc.
A direction was made to the respondents in the Fishery Department to make fresh settlement of 1/77 Digdhar Brahmaputra Fishery in accordance with the laid down procedure. It was also made clear that while making fresh settlement, the authority concerned will take into account the ground urged by the petitioner against the respondent no.4 in the said writ petition. Particular observation was made that in the absence of any formal settlement with the respondent no.4 by way of execution of agreement, there is no question of granting any extension of the existing lease period and the authority is to initiate fresh settlement process as per laid down procedure upon expiry of the term of the settlement. The said order of the Court dated 7.8.2013 was carried in appeal by the respondent no.4 in W.A. No.294/2013. The Writ Appellate Court having considered the provisions under Rule 8(b) of the Assam Fishery Rules, 1953 allowed the writ appeal holding that while the lessee (respondent no.4 herein) had a statutory right under Rule 8(b) to claim extension, the Government also has the corresponding legal obligation to consider such claim within the parameters prescribed by Rule 8(b) and that the discretion vested with the Government must be exercised in a reasonable manner and in accordance with law subject to fulfilment of the conditions. The Writ Appellate Court observed that it will be wholly inappropriate for the Court to prohibit or restrain a lessee from exercising its statutory right under Rule 8(b) as well as preventing the Government from exercising its discretionary power vested by law as to whether extension should be granted or not. The said Writ Appeal was accordingly allowed on 4.8.2014 by modifying and setting aside that portion of the direction of the learned Single Judge wherein it held that no extension of the fishery lease should be granted. An observation was made to the effect that since the matter with regard to extension was before the Government in the Fishery Department, it was for the Government to take a decision whether to entertain the prayer for extension of lease or not. 3. The facts in the present case commences with the events taking place pursuant to the order dated 4.8.2014 in W.A.294/2013.
3. The facts in the present case commences with the events taking place pursuant to the order dated 4.8.2014 in W.A.294/2013. It appears that the Fishery Department marked a letter dated 29.8.2014 to the Deputy Commissioner, Goalpara, seeking information in respect of the proposal for extension of the lease period of the 1/77 Digdhar Brahmaputra Fishery. The information sought for was in respect of (i) the quantum of loss suffered by the lessee Society during the period of lease, (ii) the status of the payment of revenue by the lessee Society and, (iii) whether the losses need recovery and the period of time for extension. 4. The Deputy Commissioner furnished information by his letter dated 2.9.2014 indicating that with regard to the loss incurred by the respondent no.4, an enquiry had been conducted by the District Fishery Development Officer where loss was assessed at Rs.7,10,000/- towards damage of fishing nets and carrying of earth and sand by shallow boats. Reliance was also placed upon an enquiry conducted by the Circle Officer, Balijana and the O/C, Pancharatna whereupon the Fishery Development Officer, Goalpara had also assessed a loss amount of Rs.6,00,000/- due to poisoning of fish by some miscreants in the year 2010-11. Reference was also made to Case No. 18/2009 filed before the Court of Additional District Magistrate wherein an order was passed on 10.6.2010 directing the Officer-In-Charge, Goalpara as well as Joghighopa, Pancharatna and Mornoi Police Station to stop illegal trespassing and fishing within the boundary of the fishery in question in order to avoid loss of annual revenue of Rs.11,01,444/-. Considering the period between initiation of the Case No. 18/2009 and issue of final order on 10.6.2010, which was approximately 8 (eight) months, the Deputy Commissioner, Goalpara, assessed a loss amount at approximately Rs,9,00,000/-. In all and on the basis of the enquiry and assessment made by the District Fishery Development Officer as well as on his own estimate with regard to the alleged loss of Rs,9,00,000/- arrived at a finding that the total loss of revenue was Rs.22,00,000/-. The Deputy Commissioner also indicated that the Respondent No.4 Society had deposited full fishery revenue for the lease period between 13.9.2007 to 12.9.2014. Also, having regard to the loss incurred, recovery of the loss amount is needed and the period of time be extended upto 3 (three) years. 5.
The Deputy Commissioner also indicated that the Respondent No.4 Society had deposited full fishery revenue for the lease period between 13.9.2007 to 12.9.2014. Also, having regard to the loss incurred, recovery of the loss amount is needed and the period of time be extended upto 3 (three) years. 5. Acting upon the information/report of the Deputy Commissioner dated 2.9.2014, the Government of Assam in the Fishery Department issued the order of extension dated 11.9.2014 in favour of the respondent no.4. In the said order, reference was made to the Courts order in W.A.294/2013 whereby, according to the Respondent State, a direction/order had been made to take appropriate decision in the matter of extension of lease term of 1/77 Digdhar Brahmaputra Fishery. The term of lease in favour of the respondent no.4 was extended by two years from the date of expiry of the earlier lease term. This order of extension is assailed in the present proceedings. 6. Mr. B. Goswami, learned counsel representing the petitioners submits that the order of extension dated 11.9.2014 is wholly illegal and not sustainable in law, in that, the same was passed by ignoring and/or in total defiance of the instruction issued to all Deputy Commissioners vide Govt. Instruction dated 29.11.2010. According to Mr. Goswami, the Govt. of Assam in the Fishery Department issued the letter dated 29.11.2010 laying down certain guidelines/instructions in all cases of proposals for extension of fishery lease. As per the said Government instruction, the necessity for sending the Profit & Loss statement of the entire period of settlement under consideration along with the extension proposal was indicated and informed to all Deputy Commissioners of respective districts. In this regard, it is contended that the report/information submitted by the Deputy Commissioner, Goalpara on 2.9.2014 did not conform to the Government instruction, in that, it was neither based on the Profit & Loss statement of the respondent no.4 covering the entire period of settlement immediately preceding issuance of the impugned order of extension nor any such Statement was sent to the Government along with the extension proposal dated 2.9.2014. Therefore, the said Report of the Deputy Commissioner could not have formed the basis or be acted upon, being rendered by ignoring the Government instruction of 29.11.2010. In addition, Mr.
Therefore, the said Report of the Deputy Commissioner could not have formed the basis or be acted upon, being rendered by ignoring the Government instruction of 29.11.2010. In addition, Mr. Goswami contends that on 30.8.2014 the petitioner Society had made a representation before the Deputy Commissioner, Goalpara objecting to any extension that may be granted in favour of the respondent no.4. In the said representation it was indicated that the respondent no.4 had on earlier occasion made an application for extension of lease which was rejected and that the same would be apparent from the Govt. File No. Fish-4/2007. Also, the respondent no.4 had defaulted in making payment of revenue for the period from 14.4.2007 to 17.5.2007 and that during the last 7 years had also defaulted in making regular payments of the instalments of the annual revenue. It is submitted that the said representation was forwarded by the Deputy Commissioner, Goalpara to the Fishery Department on 2.9.2014. However, the said representation was ignored from consideration and the impugned order of extension of lease was issued. Further contention of the petitioner is that regarding the Profit & Loss Account (Annexure-R series), the Audit Report and Balance Sheet of the respondent no.4 for the years 2009-10, 2010-11 and 2011-12, would clearly show that no loss was incurred by the respondent no.4 during those years. Situated thus, the argument is that since the Report of the Deputy Commissioner did not present a correct picture on the financial side of the respondent no.4, no extension could have been granted to it as a matter of course. Reference was also made to the letter dated 27.11.2013 of the Fishery Department whereby the prayer made by the respondent no.4 for remission of revenue had earlier been rejected and that the same stood admitted by the Respondent State at paragraph 16 of its affidavit-in-opposition. 7. Referring to the report/information/proposal furnished by the Deputy Commissioner on 2.9.2014, Mr. Goswami submits that the assessment of loss was not arrived at by way of an independent assessment but by only making reference to the reports of the District Fishery Development Officer. In this connection, it is also contended that loss alleged to have been incurred due to poisoning of fish defies all logic, in as much as, 1/77 Digdhar Brahmaputra Fishery constitutes a portion of the mighty river Brahmaputra and is not a pond as such.
In this connection, it is also contended that loss alleged to have been incurred due to poisoning of fish defies all logic, in as much as, 1/77 Digdhar Brahmaputra Fishery constitutes a portion of the mighty river Brahmaputra and is not a pond as such. Therefore, it would be absurd to believe that there could be any poisoning in one particular strip of the ever flowing Brahmaputra river. Referring to the judgment rendered in the Writ Appeal, it is contended that the same has been misconstrued only for the purpose of extending benefit to the respondent no.4. In the said order of the Division Bench only liberty was granted to the Government to take a decision whether or not to entertain the prayer for extension. Apparently, there was no direction for granting extension. Referring to the Report of the Deputy Commissioner, Goalpara, it is submitted that he was so enthusiastic and eager to favour the respondent no.4 that he proposed for extension by three years even when the respondent no.4 itself had sought relaxation of revenue for two years. Also, the petitioners representation dated 30.8.2014 was ignored from consideration and the Deputy Commissioner utterly failed to seek the required information regarding the Profit & Loss Statement of the Respondent No.4 from the concerned authorities. Particular reference has also been made that, assuming but not admitting, the Respondent No.4 had suffered loss of Rs.13,00,000/-during the period 2010-11 and 2011-12, the Deputy Commissioner on his own raised the amount to Rs.22,00,000/- for reasons not disclosed, not to speak of the fact that the Deputy Commissioner had conveniently ignored to notice that the prayer made by the respondent no. 4 for remission of Rs.13,00,000/- had earlier stood rejected by the order of the competent authority. Lastly, in so far as the respondent no.4 is concerned, it is a defunct society and it had been amalgamated with one Jogighopa Min Samabai Samittee Ltd. in terms of Section 15(3) of the Assam Co-operative Societies Act, 1949. Reference is made to the Enquiry Report of the Senior Inspector/Auditor of Co-operative Societies, Goalpara (Annexure-F) which clearly indicated the status of the respondent no.4 as running defunct without any existence and that the same had been recorded in the letter of the District Deputy Registrar of Co-operative Societies, Goalpara dated 5.7.2004. 8.
Reference is made to the Enquiry Report of the Senior Inspector/Auditor of Co-operative Societies, Goalpara (Annexure-F) which clearly indicated the status of the respondent no.4 as running defunct without any existence and that the same had been recorded in the letter of the District Deputy Registrar of Co-operative Societies, Goalpara dated 5.7.2004. 8. The stand of the Respondent No.2 i.e. the Deputy Commissioner, Goalpara finds reflection in the affidavit-in-opposition filed on his behalf. Eschewing an exhaustive reference to the various statements made therein, notice may be had to those statements displaying the role of the Deputy Commissioner which eventually culminated in the impugned order of extension dated 11.9.2014. Firstly, the affidavit-in-opposition do not disclose and reply/response to the averment made in the writ petition regarding the Government instruction dated 29.11.2010, which pertains to the instruction given to all Deputy Commissioners for sending the Profit & Loss statement along with the proposals for extension of fishery lease. At paragraphs 8, 19 and 21 of the affidavit-in-opposition, the respondent no.2 reiterated the contents of its report dated 2.9.2014 to say that the matter with regard to loss suffered by respondent no.4 had been enquired into by the District Fishery Development Officer and loss to the tune of Rs.7,10,000/- was assessed due to carriage of earth and sand by shallow boats to Baladmari Char Play Ground for the purpose of earth filling. In addition and on the basis of enquiry conducted by the Circle Officer, Balijana Circle and Officer-In-Charge of Pancharatna Police Station, loss to the tune of Rs.6,00,000/- had also been assessed due to poisoning of the fishery by some miscreants. Besides, the respondent no.4 had also submitted a petition before the Additional District Magistrate, Goalpara on 12.4.2010 asking compensation for an amount of Rs.11,00,000/- as it had to clear the expenditure of the writ petition and the Misc. Case. Reference was also made to the Summary Report of the Co-operative Societies of North Salmara, Abhayapuri covering a period until 31.3.2014 to say that although the respondent no.4 had prayed for remission of Rs.13,00,000/- it had suffered a loss of Rs.15,71,679/-. Reference was also made to the Note of the Audit Report which indicated that the respondent no.4 society had earned profit of Rs.12,24,879/- but at the same time had deposited revenue for the year 2013-14 to the extent of Rs.14,26,083/-. The relevant paragraphs are reproduced hereunder: "8.
Reference was also made to the Note of the Audit Report which indicated that the respondent no.4 society had earned profit of Rs.12,24,879/- but at the same time had deposited revenue for the year 2013-14 to the extent of Rs.14,26,083/-. The relevant paragraphs are reproduced hereunder: "8. That with regard to the statements made in paragraph 14 of the petition, I say that the Respondent No.4 submitted application stating that they suffered loss due to carriage of earth/sand by shallow boat for the purpose of earth filling to Baladmari Char play ground. This matter was enquired by the District Fishery Development Officer and assessed loss amount of Rs.7,10,000/-. Further, in addition to the above some, miscreants poisoned the fishery in the year 2010-11. An enquiry in this regard was conducted by the Circle Officer, Balijana Circle and Officer-In-Charge, Pancharatna PS, who assessed loss of an amount of Rs.6,00,000/-. Besides the above, the respondent no.4 had to clear the expenditure of Writ petition and Misc. Case for which the respondent no.4 submitted petition before the Additional District Magistrate, Goalpara on 12.04.2010 asking compensation of an amount of Rs.11,00,000/-." 19. That with regard to the statements made in paragraph 30 of the petition, I say that the Society of Respondent No.4 suffered a loss. It has not any time failed to pay the Government revenue. In spite of the hardship faced by the applicant Society, it has never defaulted as such, keeping in view, the interest of the Government revenue. The respondent No.4 cleared full revenue and for loss appeal before the Hon'ble Court and Govt. for remission of loss amount. And the Hon'ble Court disposed the writ appeal on 4.8.2014 where it is directed to take decision on extension as per Fishery rule. The society of Respondent No.4 filed representations before the Fishery Department as well as before this office for taking appropriate steps in respect of extension. Even though the society of Respondent No.4 has suffered a loss it has not at any time failed to pay the Govt. revenue, So, if extension is given to the Respondent No.4, it is justified and in the interest of Government revenue.
Even though the society of Respondent No.4 has suffered a loss it has not at any time failed to pay the Govt. revenue, So, if extension is given to the Respondent No.4, it is justified and in the interest of Government revenue. As per summary report of the Auditor Co-operative Societies, North Salmara, Abhayapuri till 31.3.2014, the Respondent No.4 society has suffered a loss of Rs,15,71,697/- but they prayed for remission of Rs,13,00,000/ and at note of Audit record it is mentioned that though the society earn profit of Rs.12,24,879/-, but the Society had deposited revenue for the year 2013-14 an amount of Rs.14,26,083/-. 21. That with regard to the statements made in paragraph 32 of the petition, I say that as per application submitted by the Respondent No.4 for exemption of revenue for the year 2010-11 and 2011-12 for an amount of Rs.13,00,000/-, due to loss incurred for earth/sand carried by the shallow boats for earth filling to Baladmari Char Play ground and poisoning the ghulies. In this regard, an enquiry was conducted by the District Fishery Development officer and assessed loss at Rs.7,10,000/- for earth and sane carrying by the shallow boat and damaged the jals etc. And due to poisoning of fish by some miscreants, an enquiry was conducted by the Circle Officer, Balijana, Officer-in-Charge, Panchratna P.S. and District Fishery Development Officer, Goalpara and assessed the loss amount of Rs.6,00,000/-. In addition to the above loss, the Respondent No.4 also applied for remission of Rs.11,00,000/- before the Additional District Magistrate for the 2009-10 on account of the filing Misc.Case No.184/2009 and passed an order of the s aid case on 10.06.2010 by directing to the O/C Goalpara P.S. Jogighopa P.S. and Pancharatna RPS to stop illegal trespassing including illegal fishing within the boundary of the 1/77 Dighar Brahmaputre Fishery to avoid loss of annual revenue of Rs.11,01,444/-. But again a letter issued by the Deputy Commissioner to the above officer-in-charge on 13.08.2010 to strict compliance of the order dated 10.06.2010 as it appeared that n action was taken as per order.
But again a letter issued by the Deputy Commissioner to the above officer-in-charge on 13.08.2010 to strict compliance of the order dated 10.06.2010 as it appeared that n action was taken as per order. Hence the total loss found Rs.7,10,000/- + Rs.6,00,000/-+ Rs.11,00,000/-= Rs.24,10,000/- but the Deputy Commissioner calculated the loss amount approximately Rs.7,00,000/-+Rs.6,00,000/- + Rs.9,00,000-= Rs.22,00,000/- instead of Rs.24,10,000/- The Deputy Commissioner further begs to state that the respondent No.4 filed a case W.P.(C) No.4687/2014 for remission of loss or extension of settlement period and accordingly a judgment and order dated 12.09.2014 in W.P.(C)No.4687/2014, the Hon'ble High Court directed the Govt. to decide the extension application for the 1/77 Dighar Brahmaputra Fishery, in pursuant to the courts direction in WA No.294/2013 and the recommendation made by the Deputy Commissioner. The matter should be decided on merit and in accordance with law and only after the Governments decision, the fresh settlement of the 1/77 Dighar Brahmaputra fishery will be made." 9. Mr. B.J. Talukdar, learned counsel representing the State, have produced the records in original (File No. Fish-4/2007) and refers to the Office Note dated 13.8.2013 which mentions forwarding of the prayer petition of the respondent no.4 by the Deputy Commissioner with regard to extension of the lease period. The reports of the District Fishery Development Officer, Goalpara dated 7.9.2011 and 1.6.2012 have also been brought to the notice of this Court. The Note of the Deputy Secretary, Fishery Department dated 23.11.2011 seeking concurrence of the Finance EC-1 Department to the remission proposal of Rs.5,50,722/- as well as the stand of the Finance Department dated 2.1.2012 was also referred to. Mr. Talukdar submits that according to the order of the Finance Department dated 2.1.2012 the proposal of revenue remission was negated. The Note of the Minister of Fisheries dated 26.8.2014 was also referred to whereby it was observed that as the remission proposal was not accepted and having regard to the prayer for extension, a fresh report from the Deputy Commissioner may be sought for, for assessment and decision whether loses needs recovery and to what period of time. 10. Mr. P. Pathak, learned senior counsel representing respondent no.4 relies upon the affidavit-in-opposition so filed and submits that extension of lease was granted as per laid down procedure.
10. Mr. P. Pathak, learned senior counsel representing respondent no.4 relies upon the affidavit-in-opposition so filed and submits that extension of lease was granted as per laid down procedure. The fact that respondent no.4 had suffered loss of revenue is demonstrated from the reports of the District Fishery Development Officer as well as from the report of the Auditor of Co-operative Societies, North Salmara wherein it was indicated that until 31.3.2014 it had suffered loss to the tune of Rs.15,71,697/-. With regard to rejection of the prayer of the respondents for exemption of revenue of Rs.13,00,000/- by the Finance Department, it is submitted that the same was put to challenge in WP(C) 976/14 and the same is pending disposal before the Court. In addition, the respondent no.4 had also instituted W.P.(C) 4687/2014 praying for a direction to the State Respondents to take a final decision on the extension application in terms of the order in W.A. 294/2013 and the recommendation of the Deputy Commissioner Goalpara on 2.9.2014. It is contended that the said W.P.(C)4687/2014 was disposed of on 12.9.2014 with direction to the Government to decide the extension application on merit and in accordance with law, with further direction that settlement of the 1/77 Digdhar Brahmaputra Fishery be made only after the Government takes a decision on the application for extension made by the respondent no.4 herein. Mr Pathak submits that neither the report of the Deputy Commissioner nor the order of extension dated 11.9.2014 suffers from any infirmity, in as much as, no wrong can be attributed to the process adopted by the Government to mitigate the loss of revenue suffered by the respondent no.4. As regards the issue on neighborhood, Mr. Pathak contends that the fishery in question is located at the northern boundary of Goalpara District and southern boundary of Bongaigaon District. As a portion of the fishery falls within the district of Bongaigaon, as such, the villages in both banks of the river Brahmaputra falls within the neighborhood of the fishery. 11. The facts above have been noticed. Before adverting to the rival issues, it would be essential to look at certain events as revealed from the records so produced. The No.1/77 Digdhar Brahmaputra Fishery was settled with the respondent no.4 for seven years on 7.4.2007.
11. The facts above have been noticed. Before adverting to the rival issues, it would be essential to look at certain events as revealed from the records so produced. The No.1/77 Digdhar Brahmaputra Fishery was settled with the respondent no.4 for seven years on 7.4.2007. During the period of operation, the respondent no.4 had made an application for exemption of revenue (2nd instalment) for the year 2010-11 on grounds that some unknown miscreants had poured poisonous substances in the fishery, as a result of which, the fishes had died. As the matter with regard to remission involved concurrence of the Finance Department, the same was accordingly endorsed to the Finance Department. The proposal of revenue remission was turned down on 2.1.2012. Subsequently, another petition of the respondent no.4 was forwarded by the Deputy Commissioner, Goalpara to the Fishery Department for consideration on the matter of exemption of revenue for the years 2010-11 and 2011-12 for an amount of Rs.13,00,000/- due to loss incurred for carriage of earth/sand by shallow boats for earth filling at Baladmari Char Play Ground as well as for poisoning in the Ghulies. In the Office Note dated 27.12.2012 reference was made to the enquiry report of the District Fishery Development Officer, Goalpara assessing loss at Rs.7,10,000/-. In the said Office Note it was also noticed that on an earlier occasion a similar petition was forwarded by the Deputy Commissioner, Goalpara for exemption of revenue (2nd instalment) for the year 2010-11 and the said remission proposal had been rejected. On 16.7.2013 the Deputy Commissioner, Goalpara had again forwarded an application of the respondent no.4 where prayer was made for extension of the lease period of the fishery by three years. In the said letter of the Deputy Commissioner dated 16.7.2013, it was indicated that the respondent no.4 had suffered loss of Rs.7,10,000/- due to earth filling works by plying of shallow boats and a further sum of Rs.6,00,000/- due to poisoning of fish by some miscreants and that the same had been assessed upon enquiry made by the District Fishery Development Officer. Pursuant to the order dated 4.8.2014 in W.A.294/2013 an Office Note was put up on 26.8.2014 referring to the request made by an M.L.A. on 23.8.2014 to the Minister of Fisheries, for extending the lease term of the fishery in favour of the respondent no.4.
Pursuant to the order dated 4.8.2014 in W.A.294/2013 an Office Note was put up on 26.8.2014 referring to the request made by an M.L.A. on 23.8.2014 to the Minister of Fisheries, for extending the lease term of the fishery in favour of the respondent no.4. The subsequent Office Note of like date indicates the approval of the Minister for calling for a fresh report from the Deputy Commissioner in the matter of the prayer for extension, as proposed. Although on the same date a W.T. Message had been received from the Deputy Commissioner requesting instruction for floating a Notice Inviting Tender, the Government decided to wait until fresh instruction was received from the Deputy Commissioner in connection with the extension proposal. In respect of the report submitted by the Deputy Commissioner dated 2.9.2014, the Office Note dated 5.9.2014 indicates that with regard to loss incurred for poisoning etc. the same had earlier been turned down by the Finance Department. Also, although the Deputy Commissioner had stated that the respondent no.4 had deposited revenue from 13.9.2007 to 12.9.2014, however it was not informed whether the arrear revenue for the period from 14.4.2007 to 17.5.2007 had been deposited or not. Further, the said Office Note went on to indicate that since there is no bar for fresh settlement, the Department may instruct the authority concerned to go for floating of NIT for fresh settlement. In order to prevent loss of Government revenue it was also stated that the authority may like to settle the fishery on daily basis either with the respondent no.4 or with the petitioner herein. Alternatively, the authority may like to extend the term of fishery as suggested by the Deputy Commissioner. The said observation culminated in the Note of the Minister of Fisheries dated 10.9.2014 for extending the fishery for two years, pursuant whereof, the order of extension dated 11.9.2014 came to be issued in favour of the respondent no.4. From the Notes recorded in File No. Fish-4/2007 the eventual conclusion that is derived is that the order of extension had been granted primarily on the basis of the report dated 2.9.2014 submitted by the Deputy Commissioner, Goalpara which was approved by the Minister concerned on 10.9.2014. 12.
From the Notes recorded in File No. Fish-4/2007 the eventual conclusion that is derived is that the order of extension had been granted primarily on the basis of the report dated 2.9.2014 submitted by the Deputy Commissioner, Goalpara which was approved by the Minister concerned on 10.9.2014. 12. It appears from the above that prior to rendering of the report/information dated 2.9.2014, the Deputy Commissioner had moved the Fishery Department for consideration of the matter on exemption of revenue by relying upon the same reports of the District Fishery Development Officer, as had been done in the report/information dated 2.9.2014. Particular reference can be made to the letter of the Deputy Commissioner dated 16.7.2013 as reveled from the records. The only difference noticed is that in the present report dated 2.9.2014, a further sum of Rs.9,00,000/- had been taken into consideration which, according to the Deputy Commissioner was the loss incurred by the respondent no.4 to clear the expenditure of the Writ Petition and the Misc. Case. However, the loss alleged to have been incurred for the grounds stated in paragraph-8 of the affidavit-in-opposition in respect of the amount of Rs.9,00,000/-, the same do not find mention in the report/information dated 2.9.2014. In this connection, it is observed that while arriving at the loss of the amount of Rs.9,00,000/- no concrete basis is indicated. In other words, the reports/information dated 2.9.2014 as well as the affidavit-in-opposition do not disclose any specifics showing any exact expenditure involved in the Writ Petition and Misc. Case. 13. In so far as the loss alleged to have been incurred to the tune of Rs.6,00,000/- due to poisoning of fish by some miscreants in the year 2010-11, the Deputy Commissioner had earlier informed the Fishery Department of the same and the matter was also placed before the Finance Department and in no uncertain words the loss alleged to have been incurred due to poisoning of fish was turned down by the Finance Department. In all, the report of the Deputy Commissioner dated 2.9.2014 showing loss of an amount of Rs.13,00,000/- due to carriage of earth/sand by shallow boat for earth filling to Baladmari Char play ground and due to poisoning of fish was not a new assessment but a reiteration/repetition of what had been earlier placed before the Department concerned.
In all, the report of the Deputy Commissioner dated 2.9.2014 showing loss of an amount of Rs.13,00,000/- due to carriage of earth/sand by shallow boat for earth filling to Baladmari Char play ground and due to poisoning of fish was not a new assessment but a reiteration/repetition of what had been earlier placed before the Department concerned. Be that as it may, the very fact that the reports/instruction of the Deputy Commissioner dated 2.9.2014 being clearly based on the enquiry conducted by the other agencies itself goes to show that there was no independent application of mind on the part of the Deputy Commissioner for assessing any loss that may have been incurred by the respondent no.4 based on credible financial status. 14. More importantly, the Government instruction contained in letter dated 29.11.2010 makes it explicitly clear that in all cases for proposal for extension of lease Profit & Loss Statement of the entire period of settlement under consideration is required to be sent to the Government along with the extension proposal. The said Government instruction being an extant instruction, the Deputy Commissioner could not have furnished any extension proposal without enclosing therewith the Profit and Loss Statement of the Respondent No.4. Apparently, nothing has been stated by the respondent no.2 in his affidavit-in-opposition with regard to the aforesaid Government instruction dated 29.11.2010. The entire affidavit-in-opposition is absolutely silent on the said aspect. 15. Rule 8(b) of the Assam Fishery Rules, 1953 permits the Government to extend the period of lease, subject to the Caveat that extension has to be supported by official reports as to the nature of the cause and that too in exceptionally special cases. The said Rule 8(b) was also considered by the Court in the aforesaid W.A. 294/2013 holding that the settling authority i.e. the Government in the Fishery Department can extend the period of lease for a reasonable period subject to certain conditions, namely, (i) if the period of lease in interfered with due to natural cause or for any unavoidable reason beyond the control of the lessee; (ii) the lessee has suffered loss because of such interference; (iii) any exceptionally special case necessitating grant of extension for a reasonable period enabling the lessee to make good the loss.
The Division Bench in the aforesaid Writ Appeal also held that the discretion vested with the Government for granting extension or not has to be exercised in a reasonable manner and in accordance with law. With regard to the aspects/conditions whether the lessee has suffered loss and whether such loss finds supports by official reports, a procedure has been laid down by the Government of Assam in the Fishery Department, as would be evident from the aforesaid Government instruction dated 29.11.2010. Accordingly, the Department concerned has also asked the Deputy Commissioner by its letter dated 29.8.2014 to furnish information, amongst others, the quantum of loss suffered by the respondent no.4. For all intents and purposes the Deputy Commissioner ought to have arrived at any quantum of loss based on the Profit and Loss Statement of the respondent no.4 covering the entire period of earlier settlement and could not have been based its report simply on the assessment made by other agencies. The Government instruction of 29.11.2010 could not have been ignored by the Deputy Commissioner while sending proposal for extension of lease. As alluded to above, the said report of the Deputy Commissioner which formed the foundation for granting extension to the respondent no.4 was merely reiteration of the stand as earlier indicated in his report dated 16.7.2013, save and except the additional assessment of Rs.9,00,000/-.The assessment of loss was not independently arrived at on the basis of the Profit and Loss Statement of the respondent no.4 covering the entire period of the earlier settlement. 16. It also appears from the records so produced that intervention was made by an M.L.A. on 23.8.2014 with request to the Minister of Fisheries for extending the lease term in favour of respondent no.4, as a result of which, a fresh report was called for from the Deputy Commissioner. The records also indicate that during the said period the Deputy Commissioner had also sought for instruction from the Department for issuing Notice Inviting Tender. However, acting on the request made for submitting a fresh report, the same had been communicated by his report dated 2.9.2014. Pursuant thereof and in order of loss of revenue, the Government was contemplating whether to settle the fishery on daily basis or to take steps for extending the term of fishery as suggested by the Deputy Commissioner.
However, acting on the request made for submitting a fresh report, the same had been communicated by his report dated 2.9.2014. Pursuant thereof and in order of loss of revenue, the Government was contemplating whether to settle the fishery on daily basis or to take steps for extending the term of fishery as suggested by the Deputy Commissioner. The matter came to rest when a Note was put up by the Minister of Fisheries dated 10.9.2014 approving extension of the fishery by two years in favour of the respondent no.4. The aforesaid sequence of events indicates that not only the Deputy Commissioner failed to apply his mind while rendering the report in compliance of the Government instruction dated 29.11.2010, the Fishery Department had also failed to exercise due diligence and application of mind to ascertain whether the report submitted by the Deputy Commissioner could at all be acted upon being rendered in defiance of the aforesaid Government instruction dated 29.11.2010. Without taking recourse to any such procedure, the decision as to whether or not the extension proposal should be entertained and granted was abruptly put to rest immediately when the Minister of Fisheries put up the Note dated 10.9.2014. 17. From the above, the unvarying conclusion derived is that the decision-making process resulting in the issuance of the order of extension dated 11.9.2014 was vitiated, in that, the laid down procedure governing extension of lease had been ignored and there was lack of due application of mind while issuing the impugned order of extension dated 11.9.2014. The very fact that the Deputy Commissioner while rendering his report/ information dated 2.9.2014 had completely ignored the Government instruction dated 29.11.2010, being the condition precedent for all the Deputy Commissioners to comply with it in respect of extension proposal, the same goes to the root of the matter. On this ground alone the order of extension dated 11.9.2014 is liable to be interfered with. 18. Having regard to the fact that the primary issue involved is on the legality and validity of the order of extension dated 11.9.2014 as well as the decision-making process in reaching the impugned conclusion, this Court is not inclined to go into the other aspects of the matter with regard to non-consideration of the representation made by the petitioner as well as whether the respondent no.4 is a defunct society or not.
Primary discussion and finding is confined to the report of the Deputy Commissioner dated 2.9.2014 and whether the same could have formed a legal and reasonable basis for issuing the order of extension dated 11.9.2014. 19. From the discussions above and without any doubt, the order of extension dated 11.9.2014 issued in favour of the respondent no.4 was passed without due application of mind on the part of both the Deputy Commissioner and the Fishery Department. Also, the report of the Deputy Commissioner dated 2.9.2014 could not have been acted upon being rendered by ignoring the Government instruction dated 29.11.2010. Accordingly, the Writ Petition stands allowed. The order of extension dated 11.9.2014 is set aside with direction to the State Respondents in the Fishery Department to take appropriate steps for issuing fresh Notice Inviting Tender for settlement of 1/77 Digdhar Brahmaputra Fishery under Goalpara District as expeditiously as possible and in accordance with law within an outer limit period of 8 (eight) weeks from today. Petitioner is permitted to furnish copy of this order to the respondents concerned for their doing the needful in terms of the above. 20. The Writ Petition stands allowed and the parties are left to bear their own costs. The records produced by Mr. Talukdar are returned herewith.