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Gujarat High Court · body

2016 DIGILAW 901 (GUJ)

Shersiya Abdul Rahim Alibhai v. State of Gujarat

2016-04-26

N.V.ANJARIA

body2016
JUDGMENT N.V. Anjaria, J. 1. By filing the present petition the petitioner has challenged decision of the respondent-Government in denying the petitioner the relief under the policy Resolution dated 25th February, 2004 regarding relief in the contract amount. 2. The impugned decision is reflected in the communication dated 21st May, 2013 of the Assistant Director of Fisheries. Thereby the petitioner is intimated that the benefit under the Resolution was not available to the petitioner for the reason that at the Faddangbeti Dam for which the fishing contract was granted to the petitioner, the water area for the relevant period of October, 2012 was above 40% of the effective fishing area. 3. It is the case of the petitioner that by order dated 11th August, 2009 passed by respondent No. 3-the Assistant Director of Fisheries, the petitioner was granted a contract for fishing in the area of Faddangbeti Dam for a period of five years from 01st July, 2009 to 10th June, 2014. The petitioner had participated in the tender process pursuant to public advertisement and having bidded highest at Rs. 07,01,380/- for the contract price, he was awarded fishing contract. In addition to the contractual conditions, the contract was to be governed by the policy of the State Government in relation to the grant of fishing contract incorporated in the policy Resolution dated 25th February, 2004. Thereby certain benefits were resolved to be granted to the contractors in the event of drought or semi-drought situations or resultant reduction in water level in the reservoir-the effective fishing area. It was made part of contract by virtue of Clause 52 thereof. 3.1 The aforesaid Resolution issued by the Department of Port and Fisheries deal with policy of the State Government with regard to the norms and conditions relating to giving up contracts to the private operators for undertaking the fishing activity at different reservoirs in the State. In clause 21, the policy provides for giving benefit at the particular rate on the basis of the level of effective water available in the water area of fishing during the month of October. For instance, if the water area is reduced between 31% and 40% in terms of water level, the person would be entitled to benefit of 30% in the contract amount. For instance, if the water area is reduced between 31% and 40% in terms of water level, the person would be entitled to benefit of 30% in the contract amount. Such amount would be 40% and 50% respectively if the depletion in the water level is more as provided in the clause. The said clause 21 may be reproduced hereinbelow. "Recovery of contract amount when water body dries up due to drought:- In drought or in cases where due to scanty rain, the water body does not contain sufficient water or where the water totally dries up or in such cases where the village/area in which the water body is located is declared as hit by scarcity or semi-scarcity by the District Collector, the relief/benefit in the contractual amount of such water body shall be granted by the District Officer, provided that the conditions of clauses 14 and 15 are not violated." It is further stipulated that the concerned officer of the Fisheries Department would take into consideration the data in respect of "scarcity" for the month of October of the relevant year prepared by the concerned officer of the Irrigation Department, conduct a site inspection and reduce it into writing in the daily register, and thereafter give the benefit/relief to the contractor in the following terms: Sr. No. Water area for the month of October in proportion to the effective water area fixed for the upset price Rate of benefit Sr. No. Water area for the month of October in proportion to the effective water area fixed for the upset price Rate of benefit 1. 31 % upto 40 % 30 % of the contract amount 2. 21 % upto 30 % 40% of the contract amount 3. Less than 20 % 50 % of the contract Amount 3.2 The above Clause is to be read as part of the terms and conditions of the contract under the Contract Condition No. 52. The aforesaid Clause spells out the policy which is evidently envisaged for giving relief and benefit to the persons who are given the fishing contracts, but due to reduction in the effective water area under the contract, for the reason of drying up of water in the area due to the occurrence of drought factor not in their control, have to bare financial loss. The extent to which and the rate at the relief is admissible are also stipulated. 3.3 It appears that in the year 2012-13, the area witnessed a situation of drought. During the relevant period, the water level during the relevant period plummeted. By communication dated 10th October, 2012 addressed to the Assistant Director of Fisheries, the petitioner requested for giving benefit of the Resolution by foregoing the levy of Ijara amount as the water level in the area had gone below and water to the extent of 15% of the total capacity was available because of which fishing activity was not possible. It appears that another application dated 29th April, 2013 was submitted for voluntarily giving up the contract in terms of paragraph 13(2) of the policy. The said request of the petitioner was accepted, he was freed of the contractual obligations and the security deposit amount was repaid to him. However with reference to the request of the petitioner made in application dated 29th April, 2013 for granting benefit of return of the contractual amount on the ground of below limit water level in the effective area as per Clause 21 of the policy, the authority issued the impugned communication denying the benefit. 3.4 The ambit of clause 21 becomes clear on bare reading. It provides that in drought or in cases of scanty rain when the water body does not have sufficient water or the water has totally dried up or in cases where the village/area in which the water body is located is declared as scarcity-hit or semi-scarcity hit by the District Collector, the relief in the contractual amount as contemplated would be grantable to the contractor. 3.5 The ground on which benefit under the Resolution and in particular clause 21 above denied to the petitioner has been that there was no reduction below 40% in the water level in the effective area of fishing during the relevant period. 3.6 Now, as far as this aspect of water level and the extent/percentage thereof in the effective fishing area during the relevant period is concerned, the stand of the respondent-authorities evinced from affidavit-in-replies filed time-to-time is clearly inconsistent. 3.6 Now, as far as this aspect of water level and the extent/percentage thereof in the effective fishing area during the relevant period is concerned, the stand of the respondent-authorities evinced from affidavit-in-replies filed time-to-time is clearly inconsistent. In the first affidavit-in-reply filed by one Leua Bharatkumar Khimjibhai holding the post of Assistant Director of Fisheries, Rajkot dated 28th January, 2014, after denying that the petitioner was entitled for refund on the ground that the reservoir water was less than 40%, it was stated that, "the same is incorrect in as much as the authentic report of the Irrigation Department clearly shows that reservoir was filled about 63.94 in the month of October, 2012". When further affidavit-in-reply by one Dr. Pravinchandra C. Malli, also Assistant Director of Fisheries, dated 19th April, 2014 was filed, it was stated with reference to same communication dated 16th April, 2013 addressed by the Executive Engineer, Surendranagar, it was claimed that the water spared area was 81.30 Hectors in October, 2012 and it was 63.94 of the effective water spread area. In yet another additional affidavit-in-reply filed by the third officer one Kaushik Bhailal Thaker, also holding the post of Assistant Director of Fisheries, it was stated in paragraph 5 that "according to water level mentioned in communication dated 22nd April, 2013, the percentage of water spread area is about 35.41% on the basis of the said reservoir's effective water spared area of 186.40 Hectors. It is further submitted that as stated in earlier affidavit-in-reply filed by the office of the answering respondent dated 28.01.2014, more particularly in paragraph 5 the petitioner's case is not covered under the Resolution for the benefit as both the conditions of the Resolution are not fulfilled….". 3.6.1 The case put up in the last additional affidavit-in-reply dated 08th April, 2016 by yet another person Mahendra Karsanbhai Chaudhari, holding the very post of Assistant Director of Fisheries, was a first-time-stand. 3.6.1 The case put up in the last additional affidavit-in-reply dated 08th April, 2016 by yet another person Mahendra Karsanbhai Chaudhari, holding the very post of Assistant Director of Fisheries, was a first-time-stand. 3.6.2 What was sought to be suggested in a meek attempt to refute the information given by the Irrigational Authority in letter dated 02nd April, 2016 that the level of water was 3.22 MCFT, it was a stand taken that such level was a live-stock and that dead-stock water in the dam was 18.54 MCFT which made the total stock 21.76 MCFT and on 31st October, 2012 the level of water in the dam was 185.60 wherein there was nil live-stock and dead-stock was 17.15 MCFT. It was sought to be explained that live-stock water was to be the level of water reaching above the dead-stock level, that is upto the level of the gates of the dam. It was on that basis, in paragraph 4 of the affidavit quoted above, it was sought to be justified that the water spread area at the end of October was 63.94%, that is less than 40% consequentially not entitling the petitioner to any relief under clause 21 of policy Resolution. 3.7 Apart the fact that the aforesaid stand was never taken, and was projected only when it was pointed out by the petitioner that the water spread area corresponding to water level of 3.22 MCFT was on conversion, worked out to be less than 40%, it is difficult to see any rationale in calculating the extent of actual water spread on the basis of livestock and dead-stock water, so described. For the purpose of calculating the extent of percentage of the water level covering the effective fishing area under the contract, it is reasonable that the actual water level available at the area is counted. 4. Learned advocate for the petitioner Mr. Majmudar assailed the impugned decision in which on the basis of the finding that the water level was above 40%, by submitting that when on the showing of the respondent authorities themselves, as per communication dated 11th June, 2013 that water level was 3.22 MCFT, the corresponding area, if properly calculated, would comes to less than 40%. Majmudar assailed the impugned decision in which on the basis of the finding that the water level was above 40%, by submitting that when on the showing of the respondent authorities themselves, as per communication dated 11th June, 2013 that water level was 3.22 MCFT, the corresponding area, if properly calculated, would comes to less than 40%. He submitted that even otherwise the stand of the authorities was different and different percentage regarding water level, etc., were stated and the proposition that the water level was about 40% was sought to be justified by placing different figures conveniently at different times. He further submitted that in any view of the matter the condition of clause 21 as regards declaration of scarcity in the village concerned was satisfied, hence the petitioner would be entitled to the benefit under the policy. 4.1 On the other hand, learned Assistant Government Pleader Ms. Divyangna Jhala relied on the affidavit-in-replies and she contended that two conditions namely declaration of drought or semi-drought as well as the water spread area becoming less than 40% were required to be satisfied and either of the two even if fulfilled, would not entitled the petitioner to relief under the Resolution. 5. As noted above, the conclusion on part of the respondent authorities that the water level was more than 40% or that it was not below 40%, is too shaky to stand straight. The stand is found to be not consistent not only in terms of the relevant figures of the water level, but also on the reasons given for such conclusion. Such inconsistent stand cannot be allowed to stand and the competent respondent authority is required to be directed to arrive at a definite conclusion and finding in that respect. It is the exercise required to be done at the end of competent authority only. Therefore for that limited purpose only, the matter is required to be remitted to respondent No. 3-Assisant Director of Fisheries for appropriate decision to be recorded on his file. 6. It is the exercise required to be done at the end of competent authority only. Therefore for that limited purpose only, the matter is required to be remitted to respondent No. 3-Assisant Director of Fisheries for appropriate decision to be recorded on his file. 6. At this stage certain pertinent aspects which are admitted position of facts may be taken note of- (i) The effective water area in which the fishing activity by the petitioner was permitted under the contract awarded to him was 127.15 Hectors out of the total Faddangbeti area of 293.32 Hectors; (ii) An order dated 06th August, 2012 came to be passed by the Additional District Magistrate in exercise of powers under the Bombay Police Act, 1951 declaring different reservoir/dam areas to be prohibited areas where the water level had gone down and the water available was required to be reserved for drinking requirement. Entry in the area was prohibited and fishing activity as well as carrying any equipment inside the area for fishing was also prohibited; (iii) The above order fortified the fact that the water quantity and the level at the Dam had depleted considerably during the relevant period; (iv) In the communication dated 06th June, 2013 mentioned hereinabove, the irrigation authority inter alia stated that for the relevant period as on 15th October, 2012, the water quantity in the dam area was 3.22 MCFT and further that the reservoir become dry fully by December, 2012; (v) From the factum of drying up of reservoir within short time it was inferable and suggested that there was a substantial depletion of water area during the relevant period. 7. Reverting back to the policy prescription under which the petitioner has claimed the benefit, the Division Bench of this Court. In Bismillakhan Kalekhan Pathan Vs. Commissioner of Fisheries being Special Civil Application 3644 of 2010 held that formal declaration of scarcity is not the condition for giving benefit under the policy and such requirement cannot be insisted upon by the Government. The Court interpreted and explained the policy in Clause 21 in the following way, "This is clear from a close reading of clause 21 which has been reproduced hereinabove. As it is not the case of the respondents that the conditions contained in clauses 14 and 15 have been violated by the petitioner, clause-21 would, per-se, be applicable to his case. As it is not the case of the respondents that the conditions contained in clauses 14 and 15 have been violated by the petitioner, clause-21 would, per-se, be applicable to his case. Clause 21 makes it clear that the policy contemplates more than one situation wherein relief can be granted to the affected party. The word 'or' has been used to differentiate different eventualities contemplated therein, each separate from the other. The said clause envisages that there should either be a drought, or the water body should contain insufficient water due to scanty rainfall, or the water in the water body should totally dry up, or the area in which the water body is located should be declared as hit by scarcity or semi-scarcity by the District Collector. Any one of such eventualities entitles the petitioner for grant of relief in the contractual amount by the concerned authorities. The prevalence of any one such eventuality is sufficient for entitlement to the relief contemplated under clause 21 and a plain reading makes it clear that it is not necessary that more than one, or all, eventualities mentioned therein should exist together." 7.1 It was further observed and held, "In short, declaration of "scarcity" or "semi-scarcity" is only one of such eventualities mentioned therein, and not a condition precedent. The intention in framing of the policy contained in the above clause is manifestly clear, which is to provide relief in the event that one of the situations contemplated by the said clause occurs. The declaration of the District Collector cannot be said to govern all other eventualities contemplated in the clause. It is, in our view, only one of the conditions in which relief will be granted and is but a formality. An absence of such a formal declaration even when one of the situations contemplated in the clause has occurred, would not nullify the Government policy, which is to provide relief in such cases. To read the clause in the manner suggested by the learned Government Pleader would render the same otiose and nugatory. An absence of such a formal declaration even when one of the situations contemplated in the clause has occurred, would not nullify the Government policy, which is to provide relief in such cases. To read the clause in the manner suggested by the learned Government Pleader would render the same otiose and nugatory. Besides, it would be violative of, and contrary to, the basic purpose and intention for formulation of the policy by the Government, which is undeniably to provide relief to affected persons." 7.2 From the above decision of the Division Bench interpreting the applicability of clause 21 of the policy, in no uncertain terms held that the benefit under the policy would accrue if only one of the conditions mentioned therein is satisfied, and that it is not necessary, nor it can be insisted that both the condition, namely reduction of water area below a particular level as well as declaration of drought was required to be fulfilled simultaneously. Either of the condition standing fulfilled, the benefit under the Resolution would flow. Given this position of law holding the field, there is no gainsaying on facts that irrespective of the aspect of the water level about which the respondent authorities have groped in dark and are directed to record a definite finding, the petitioner is eligible under the policy for getting the benefit and is entitled to get the same for the reason of the other condition being independently fulfilled. The village concerned was declared by Notification as semi-scarcity hit. This aspect was conceded by the respondent authorities and is reflected from the Resolution dated 26th March, 2013 of the Revenue Department that the Faddang Village of Rajkot District was declared as semi-scarcity area. This fact was conceded by the Assistant Director of Fisheries in his further affidavit-in-reply dated 19th April, 2014 stating-"For the sake of clarification it is stated that the area has been declared as partially drought area." Therefore the condition of the policy Resolution that the area must have been declared as scarcity hit or semi-scarcity hit by State Government, stands satisfied. 7.3 Therefore the petitioner cannot be denied the benefit of concession in the contract amount under the policy and in particular clause 21 thereof. 7.3 Therefore the petitioner cannot be denied the benefit of concession in the contract amount under the policy and in particular clause 21 thereof. In this view, the impugned decision denying the benefit or relief under the policy as per Resolution dated 25th February, 2004 cannot sustain and the same is hereby set aside. 8. Thus while holding that the petitioner is covered under the policy for the grant of benefit or relief of reduction in the contract amount as above, only on the count of inconsistent stand of the authorities as highlighted above with regard to figuring out the extent of water spread area and conclusion reached that it was beyond 40%, the case is remitted to the competent authority for arriving at a proper and definite conclusion in light of the observations made in the present order. After revisiting and reconsidering the question as above, the authority shall pass appropriate order on or before 30th June, 2016. 9. The petition is disposed of in the aforesaid terms.