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2017 DIGILAW 595 (GAU)

Malegarh Gobindapur Fishery Cooperative Society Ltd. v. State of Assam

2017-05-16

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER : Achintya Malla Bujor Barua, J. Heard Mr. S. Khound, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Addl. Senior Govt. Advocate appearing for the respondent Nos. 1 to 5 and Ms. B. Sarma, learned counsel for the respondent No. 6. As the issues involved in both the writ petitions are one and the same, it is proposed to dispose of both the writ petition by the common judgment and order. In WP(C) No. 4915/2016, an order dated 17.06.2016 of the Addl. Deputy Commissioner and In-Charge Sub-Divisional Officer(C) North Salmara, Abhayapuri by which a NIT for settlement of the fishery in question had been cancelled and the order dated 18.06.2016 of the same Addl. Deputy Commissioner by which, an extension was granted in favour of the respondent No. 6 have been assailed. On the other hand, in writ petition, being WP(C) No. 4469/2016, only the aforesaid order dated 18.06.2016 has been assailed. 2. Up to the year 2013, the respondent No. 6 herein, was settled with the Valley Manas Fishery Mahal for an amount of Rs. 40,250/- per year. In the year 2013, a tendering process was initiated for the said fishery and by participating in the same, the respondent No. 6 was settled with the fishery at his quoted rate of Rs. 10,90,000/- per year, for a period of 3 years. Accordingly, for the term of three years, the respondent No. 6 was required to pay a total amount of Rs. 32,70,000/-. But up to 04.11.2015, the respondent No. 6 had paid only an amount of Rs. 4,74,000/- and thereafter, by Challan No. 2016/08/00878 dated 08.08.2016 another sum of Rs. 2,00,000/- was paid. Consequently, against the total amount of Rs. 32,70,000/-, the respondent No. 6 had paid an amount of Rs. 6,74,000/-. 3. In the aforesaid background, the respondent No. 6 had made a representation before the respondent authorities, claiming that, firstly, there is shrinkage in the total operational area of the fishery due to shifting of the river and secondly, the fishery is under encroachment of some other person. Accordingly, a prayer was made that the respondent No. 6 be adequately compensated for the loss they had suffered due to the aforestated cause. 4. Accordingly, a prayer was made that the respondent No. 6 be adequately compensated for the loss they had suffered due to the aforestated cause. 4. The representation of the petitioner was taken up for consideration in the meeting of the Sub-Divisional Fishery Advisory Committee (in short, SDFAC) held on 26.04.2016 and in the said meeting, it was concluded that prior to the settlement made in the year 2013, no value assessment of the fishery was done, resulting in the situation, where the fishery was settled at a high value of Rs. 10,90,000/- per year. Accordingly, a proposal was mooted to grant remission to the respondent No. 6 and the same was forwarded to the Department of Fishery of the Govt. of Assam. 5. By the order dated 08.06.2016 of the Sub-Divisional Officer (Civil), North-Salmara (SDO, Civil), the respondent No. 6 was informed that the SDFAC had decided to grant a remission of 41.46% of the total lease value and accordingly, the respondent No. 6 was directed to deposit an amount of Rs. 13,56,000/-, being the balance amount payable in respect of the settlement made in the year 2013, after deducting the remission of 41.46%. The respondent No. 6 was also allowed to participate in the fresh tender process after depositing the required amount. 6. In the meantime, the NIT dated 09.06.2016 was issued for settlement of the fishery in question and the said NIT was assailed by the respondent No. 6 in WP(C) 3533/2016. It was the case of the respondent No. 6 that they had submitted representation for grant of an extension of the earlier lease period and in the event, the NIT dated 09.06.2016 is allowed to be proceeded, the legal right of the petitioner for consideration of their representation for extension would be frustrated. The said WP(C) 3533/2016 was disposed of by the order dated 15.05.2016 directing the state respondent authorities to consider the representation of the petitioner for the extension, by providing that the matter should be considered on merit in accordance with Rule 8(b) of the Assam Fishery Rules 1953. Rule 8(b) of the Assam Fishery Rules 1953 is as follows:- "Extension of the term of lease-(i) where........ Rule 8(b) of the Assam Fishery Rules 1953 is as follows:- "Extension of the term of lease-(i) where........ the period of lease of registered fisheries being ordinarily not less than three years is interfered with, due to any natural cause or for any unavoidable reasons beyond the control of the leasees, Government may extend the period of such lease supported by official reports so as to the nature of cause in exceptionally special case for a reasonable period so as to enable such leases to make good the loss." 7. A reading of Rule 8(b) goes to show before an order of extension is made under the said Rule, the authorities have to satisfy itself that in the earlier lease period of not less than three years, there was an exceptionally special case, resulting in a loss being suffered due to any natural cause or due to any unavoidable reason beyond the control of the lease, and only in such an event, the period of lease can be extended for a reasonable period so as to make good the loss. 8. On the basis of the order of this Court dated 15.06.2016, the state respondent authorities by an order dated 17.06.2016 had cancelled the tendering process initiated pursuant to the NIT dated 09.06.2016 and by the order dated 18.06.2016 of the Addl. Deputy Commissioner-Cum-SDO(C) North Salmara, the fishery in question, was extended in favour of the respondent No. 6 for a period of three years w.e.f. 19.06.2016 to 18.06.2019. 9. The said order of cancellation of the NIT dated 17.06.2016 and the order of extension dated 18.06.2016 are assailed in this writ petition. 10. It is noticed from the order dated 17.06.2016 that the tendering process pursuant to the NIT 09.06.2016 was cancelled in view of the order of this Court dated 15.06.2016 in WP(C) 3533/2016. Further from the order of extension dated 18.06.2016, it is noticed that the extension was granted in compliance of the said order of this Court dated 15.06.2016. In any view of the matter, both the cancellation of the NIT and the extension in favour of the respondent No. 6 was stated to have been made by following the direction of this order in its order dated 15.0-6.2016 in WP(C) 3533/2016. 11. In any view of the matter, both the cancellation of the NIT and the extension in favour of the respondent No. 6 was stated to have been made by following the direction of this order in its order dated 15.0-6.2016 in WP(C) 3533/2016. 11. In order to appreciate correctness of the order of cancellation of the NIT and the order extension in favour of respondent No. 6, the order of this Court dated 15.06.2016 in WP(C) 3533/2016 is being looked into. From the order 15.06.2016, it is seen that the direction of this Court was as follows:- "....to consider the representation of the petitioner for extension of lease of the 20/118 valley Manas Fishery. The matter should be considered on merit in accordance with Rule 8(b) of the Fishery Rules. But without the final decision on the extension application, the settlement of the 20/118 Valley Manas Fishery should not be granted, in pursuant to the NIT dated 09.06.2016. It is ordered accordingly." 12. From the order of this Court dated 15.06.2016, it is discernible that the direction was to consider the representation of the respondent No. 6 for extension of the lease period in respect of the concerned fishery and to consider the extension on its merit in accordance with the Rule 8(b) of the Assam Fishery Rules 1953. Accordingly, it is the view of this court that in the order dated 15.06.2016, there was no such direction to either cancel the NIT dated 09.06.2016 or to grant the extension in favour of the respondent No. 6, so as to enable the respondent authorities to pass an order of extension, merely by stating that it had been done in compliance of the order of this Court. 13. The expression 'consideration' would mean that there must be due application of mind and after taking into account, the related facts and circumstances and also the relevant law in force, a decision is required to be taken. The expression 'consideration' cannot mean that the prayer made, for which the 'consideration' is required to be given, can be allowed without there being any conclusion and finding that such prayer is justified in the facts and circumstance and also under the relevant law applicable. 14. The expression 'consideration' cannot mean that the prayer made, for which the 'consideration' is required to be given, can be allowed without there being any conclusion and finding that such prayer is justified in the facts and circumstance and also under the relevant law applicable. 14. The concept of consideration was also dealt with by the Hon'ble Supreme Court in its decision rendered in A.P. SRTC and Ors v. G. Srinivas Reddy and Ors., reported in (2006) 3 SCC 674 , wherein, in paragraph-17 it has been provided as under:- "Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to 'consider' the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the Court. But where the High Court without recording any findings or without expressing any view, merely directs the authority to 'consider' the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the Court." 15. The Hon'ble Supreme Court is also of the view that when the High Court without recording any finding directs the authority to 'consider' the matter, the authority will have to consider it in accordance with law and with reference to the facts and circumstances of the case. 16. In view of the aforesaid meaning and interpretation of the expression 'consider', the direction of this Court in its order dated 15.06.2016 to consider the representation of the respondent No. 6 on its own merit in accordance with Rule 8(b) of Assam Fishery Rules 1953, would mean that the respondent authorities are required to arrive at a conclusion whether the facts and circumstance involved in the case would justify an order of extension in favour of the respondent No. 6. As the consideration has to be made on its own merit as per Rule 8(b) of the Assam Fishery Rules, 1953, a conclusion would also have to be arrived there exists an exceptionally special circumstance caused by any natural cause or any unavoidable reason beyond the control of the lease requiring an extension for a reasonable period to enable the lessee to make good the loss. 17. 17. Accordingly, the respondent authorities are required firstly to arrive at a conclusion that there exist an exceptionally special case, secondly, it was due unavoidable reason beyond the control of the lessee and thirdly to assess the loss made by the lessee and extend the lease for such reasonable period so as to enable the lease to make good the loss. 18. When the orders dated 17.06.2016 and 18.06.2016 are examined from the aforesaid point of view, it is discernible that no such conclusion have been arrived at by the respondent authorities as to what was the exceptionally special circumstance and that it was due to unavoidable reason beyond the control of the lease and that the lessee had suffered some loss. 19. It is noticed that out of the total amount of Rs. 32,70,000/- payable by the respondent No. 6 for the three year settlement, they have paid only an amount of Rs. 6,74,000/- and after the order of remission, they are required to pay the balance amount of Rs. 13,56,000/-. A lessee can suffer loss only when a higher amount had been paid and in return fishes having a value of a lesser amount has been received. Therefore, in order to arrive at a conclusion that the respondent No. 6 had suffered loss, it is incumbent upon the respondent authorities to arrive at a conclusion that during earlier settlement of three years, the lessee had paid a higher amount, but in return could avail fishes for a lesser amount. 20. In view of the aforesaid discussion, this Court is of the view that that no such conclusion regarding the existence of an exceptionally special circumstance and that the respondent No. 6 had suffered a loss, was arrived by the authorities while the order dated 17.06.2016 and 18.06.2016 were passed. 21. Accordingly, this Court is of the view that the direction issued by this court in its order dated 15.06.2016 in WP(C) 3533/2016, to consider the representation of the respondent No. 6 on its own merit in terms of Rule 8(b) of Assam Fishery Rules 1953 had not been duly complied with. A mere cancellation of the NIT dated 09.06.2016 and granting of extension to the respondent No. 6, without arriving at any such conclusion, as indicated hereinabove, cannot be construed to be a consideration to made by the respondent authorities pursuant to the order dated 15.06.2016. 22. A mere cancellation of the NIT dated 09.06.2016 and granting of extension to the respondent No. 6, without arriving at any such conclusion, as indicated hereinabove, cannot be construed to be a consideration to made by the respondent authorities pursuant to the order dated 15.06.2016. 22. Also the power of the respondent authorities under Rule 8(b) of Assam Fishery Rules 1953 is merely an enabling power to grant an extension in an exceptionally special case for a reasonable period so as to enable the lease to make good the loss. When this Court by order dated 15.06.2016 had directed that the representation of the respondent No. 6 for extension be considered on merit in accordance with Rule 8(b) Assam Fishery Rules, it was incumbent upon the state respondent authorities to arrive at a definite conclusion that an exceptionally special case has been made out for extension for a reasonable period and secondly that the said exception has been granted to make good the loss suffered by the leasee. 23. In view of the above, this Court is of the view that the order of extension dated 18.06.2016 is not sustainable in its present form and that same is not in due compliance of the direction of this Court in its order dated 15.06.2016. Accordingly, the said order dated 18.06.2016 is hereby set aside. Consequently, the earlier order dated 17.06.2016 cancelling the NIT is also set aside. 24. The respondent authorities may now give a fresh consideration to representation of the respondent No. 6 as ordered earlier by this Court dated 15.06.2016 in strict compliance of the observation made hereinabove and pass a reasonable speaking order on the same. Depending upon the nature of the order to be passed, the respondent authorities may either bring or not bring the process of tender pursuant to the NIT dated 09.06.2016 to its logical end. 25. While giving such fresh consideration, the respondent authorities would also take into account that the respondent No. 6 had already been granted a remission of 41.46% to make good the loss that it may have suffered. In terms of the above, both the writ petitions stand disposed of.