Gauhati High Court
Pub Goalpara Fishery Co-Operative ... vs The State Of Assam And 7 Ors on 27 April, 2022
Author: Soumitra Saikia
Bench: Chief Justice, Soumitra Saikia
Page No.# 1/24
GAHC010187682021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/306/2021
PUB GOALPARA FISHERY CO-OPERATIVE SOCIETY
REP. BY ITS SECRETARY, SRI RANJIT KUMAR DAS, R/O- VILLAGE NO. 1
BOLADMARI CHAR, P.O. BOLADMARI CHAR, DIST.- GOALPARA, PIN-
7833101, ASSAM
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM, FISHERY DEPARTMENT, DISPUR, GUWAHATI-781006.
2:THE SECRETARY TO THE GOVT. OF ASSAM
FISHERY DEPARTMENT
DISPUR
GUWAHATI-781006.
3:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
FISHERY DEPARTMENT
DISPUR
GUWAHATI-781006.
4:THE DIRECTOR OF FISHERIES
ASSAM
MEEN BHAWAN
SARABHHATTI
GUWAHATI-781016.
5:THE DEPUTY COMMISSIONER
GOALPARA
PIN- 783101
ASSAM
Page No.# 2/24
6:THE DEPUTY COMMISSIONER
BONGAIGAON
PIN- 783380
ASSAM
7:THE DISTRICT FISHERY DEVELOPMENT AUTHORITY
GOALPARA
ASSAM
8:MALEGARH GOBINDAPUR FISHERY CO-OPERATIVE SOCIETY LIMITED
REP. BY ITS SECRETARY SRI PARESH CHANDRA DAS
R/O- MALEGARH
GOBINDAPUR
P.O. MALEGARH
P.S. JOGIGHOPA
DIST.- BONGAIGAON-783383
ASSA
Advocate for the Petitioner : MR. M K CHOUDHURY
Advocate for the Respondent : GA, ASSAM
BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA For the Appellant : Mr. M.K. Choudhury, Sr. Advocate.
: Mr. P. Bhardwaj, Advocate.
For the Respondents : Mr. D. K. Sarmah, Addl. Sr. Govt.
Adv.(for Respondent Nos. 1 to 7) : Mr. D. Das, Sr. Advocate : Mr. S. Khound, Advocate.
(For respondent No. 8)
Date of Hearing : 22.02.2022
Date of Judgment : 27.04.2022
Page No.# 3/24
JUDGMENT & ORDER (CAV)
(Soumitra Saikia, J)
1. This appeal is directed against the Judgment and Order dated 02.11.2021 passed in WP(C) No.3314/2019. By the said Judgment and Order, the settlement of 1/77 Digdhar Brahmaputra Fishery settled with the respondent No. 8, namely, Malegarh Gobindapur Fishery Co-operative Society Limited (appellant herein) was set aside and the settlement was directed to be made with the respondent No. 8/writ petitioner.
2. By an NIT dated 24.05.2018 issued by the Deputy Commissioner, Goalpara, the fishery-1/77 Digdhar Brahmaputra Fishery was sought to be settled by way of a tender process from eligible bidders. The settlement of the fishery was to be leased out for 7(seven) years on 60% basis through quotations by selecting eligible Self Help Group, NGO etc. formed by the fishermen. It was also mentioned in the tender notice that the quotations can be submitted by co-operative society formed by 100% SC Community people/Self Help Group formed by fishermen belonging to SC community, NGO etc. and as per the tender notice bidders must belong to the Goalpara district and in the neighbourhood of fishery. The minimum amount of Revenue for the "Meen Mahal" i.e. the fishery was fixed at Rs.7,57,458/- (Rupees Seven Lakh Fifty Seven Thousand Four Hundred and Fifty Eight) only.
3. Both the appellant and the respondent No. 8 submitted their bids. A total of 6(six) bids were submitted in response to the tender notice. The Page No.# 4/24 bid submitted by the respondent No. 8 in the writ appeal (writ petitioner) was found to be the second highest at Rs.21,03,225/ (Rupees Twenty One Lakh Three Thousand Two Hundred and Twenty Five) only. The appellant (respondent No. 8 in the writ petitioner) submitted a bid of Rs.11,11,111/- (Rupees Eleven Lakh Eleven Thousand Eleven Hundred and Eleven) only.
The appellant was the fourth highest bidder. Vide order dated 20 th December, 2018, the fishery was settled with the appellant at a bid price of 11,11,111/- (Rupees Eleven Lakh Eleven Thousand Eleven Hundred and Eleven) only for a period of 7(seven) years from the date of handing over the possession of the fishery. The writ petitioner's bid was rejected on the following grounds:-
(i) The fishing experience certificate issued by the DFDO, Bongaigaon was in the name of the President of the Society which does not cover all the Members of the Society,
(ii) The Bakijai Clearance Certificate was issued by the Bakijai Officer of Cooperation Department, North Salmara, Abhayapuri, which however ought to have been issued by Bakijai Authority under DC, Bongaigaon or by DCM, Goalpara as the petitioner-society is registered in the Bongaigaon district.
(iii) The Neighbourhood Certificate submitted by the society is not valid as it has not been issued by the concerned Circle Officer of the District under which the fishery falls.
4. Being aggrieved the order of settlement awarded in favour of the appellant, the same was challenged by way of this writ petition by the respondent No. 8 as the writ petitioner. The writ petition was allowed by Page No.# 5/24 the Learned Single Judge interfering with the settlement made in favour of the present appellant with a further direction to the respondent Authorities that the settlement of no. 1/77 Digdhar Brahmaputra Fishery be made with the petitioner society at the price offered by it. It was further ordered that the said settlement has to be for the period which was mentioned in the NIT dated 24.05.2018 which is for a period of (seven) 7 years and the entire process was directed to be completed expeditiously and in any event, within a period of 1(one) month from the date of receipt of the certified copy of the order.
5. Mr. M. K. Choudhury, learned senior counsel assisted by Mr. P. Bhardwaj, learned counsel for the appellant strenuously urged that there is no infirmity in the settlement order dated 20.12.2018 passed by official respondents. The learned senior counsel urged that a bare perusal of the tender notice would reveal that the participation in the bid process is restricted to residents of Goalpara district only. The term "Neighbourhood" of the fishery will have to be understood in the context of the residence of the bidders and/or the district in which the cooperative society of the fishermen is registered. The learned senior counsel summits that the appellant is registered in the district of Goalpara whereas the respondent No. 8/writ petitioner is admittedly a society which is registered in the district of Bongaigaon. Accordingly, in terms of the tender notice dated 24.05.2018 the writ petitioner not being a resident of the district of Goalpara, the term "Neighbourhood" of the fishery cannot be expanded to include fishermen societies of the nearby districts. The learned senior counsel further urged that the Fishermen Experience Certificate was issued in the name of the President of the Fishermen society and who at Page No.# 6/24 the time of submission of the bid was not the President of the society. The same, therefore, cannot be said to cover the requirement of fishing experience in respect of the entire society. Regarding the Bakijai certificate, the learned senior counsel submits that the official respondents had rightly rejected the Bakijai certificate submitted by the petitioner inasmuch as that the same was not issued by the authority competent to issue such a certificate. It was issued by the Bakijai Officer of Cooperation Department, North Salmara, Abhayapuri when the same ought to have been issued by the Bakijai Authority under the DC, Bongaigaon or DCM, Goalpara.
6. The learned senior counsel for the appellant would submit that a Fishing Experience Certificate issued by DFDO, Bongaigaon as furnished by respondent No. 8 does not fulfill the criteria prescribed under the Rules and therefore, the settlement made in favour of the appellant by the respondent authority has been rightly done so. The Judgment of a Co- ordinate Bench rendered in Khoraghat Gulihara Fishery Cooperative Society Ltd -Vs- State of Assam and Others, reported in (2014) 1 GLR 723 is relied upon by the learned senior counsel for the appellant to buttress his contentions that the fishermen/fishing experience certificate is a vital and essential criteria which cannot be overlooked at the time of settlement.
7. The judgment of this Court in M/s. Kachudola Fishery Cooperative Society Ltd., P.O. - Kheluapara, district - Bongaigaon, Assam (Represented by its Secretary Shri Adhir Chandra Namo Das). -Vs- The State of Assam and Others reported in AIR 2013 Gau 143 is pressed into service by the Page No.# 7/24 learned senior counsel to support his contention that the settlement made in favour of the appellant ought not to have been interfered with by the learned Single Judge as there was no infirmity in the settlement order issued in favour of the appellant. The learned senior counsel submits that Fishing Community Certificate submitted by the writ petitioner/ respondent No. 8 was issued in the name of its former President and it does not disclose that the members of the society are 100% fishermen.
8. The learned senior counsel has also referred to the judgment of this Court rendered in Manash Padmabari Jiniram Fishery Co-operative Society Ltd. -Vs- State of Assam and Ors reported in 2009 (4) GLT 909 to submit that it is only when the order of settlement passed by the Settling Authority is without satisfying the conditions necessary that such order requires interference under Judicial Review. In the facts of the present case since all the necessary conditions have been fulfilled and which have been properly and duly scrutinized and assessed by the Settling Authority, no interference by the learned Single Judge was called for in respect of the settlement granted in favour of the appellant. The impugned Judgment and Order passed by the learned Single Judge therefore needs to be suitably interfered with.
9. The Judgments rendered in Bikash Bora -Vs- State of Assam and Ors. reported in 2003 (2) GLT 485, M/s Poddar Steel Corporation -Vs- M/s Ganesh Engineering Works and Others. reported in AIR 1991 SC 1579, Monarch Infrastructure (P) Ltd. -Vs- Commissioner, Ulhasnagar Municipal Corporation and Ors. reported in (2000) 5 SCC 287 and AIR India Ltd. - Vs- Cochin International Airport Ltd. and Ors. reported in (2000) 2 SCC Page No.# 8/24 617 are pressed into service by the appellant to support his contention that there was no infirmity in the decision making process adopted by the settlement authority. Therefore, in the absence of any infirmity in the decision making process by the authority, no interference under Judicial Review was warranted. The learned Single Judge, therefore, ought not to have interfered with the settlement granted in favour of the appellant.
10. Per contra, Mr. D. Das, learned senior counsel assisted by Mr. S. Khound, learned counsel appearing for the respondent No. 8 submits that the respondent authorities did not consider relevant factors but had taken their decision on extraneous and irrelevant factors. It is submitted by the learned Senior counsel that the respondent No. 8/ Petitioner's bid was rejected on non-existent grounds. The learned Senior counsel urged that the Fishing Experience Certificate was issued in the name of the erstwhile President of the Society when the society was registered as far back as 09.02.1959 and the society has been involved in Fishery since then. The Bakijai Certificate was issued by the Bakijai Officer-North Salmara, Abhayapuri under whose jurisdiction the petitioner society is situated and who is the Competent Officer to issue the said certificate. In so far as the question of neighbourhood of respondent No. 8/petitioner is concerned, the learned Senior counsel submits that the respondent No. 8 Fishery is indeed situated within the neighbourhood of the fishery. It is contended that the learned Single Judge has examined the matter in detail and, therefore, there is no infirmity in the Judgment of the learned Single Judge requiring any interference in this appeal. The learned senior counsel submits that in respect of the 3(three) objections raised by the official respondents, namely, (i) Experience Certificate, (ii) Bakijai Certificate and Page No.# 9/24
(iii) Neighbourhood Certificate, the learned Single Judge has dealt with each of the issues and thereupon interfered with the impugned order of settlement made in favour of the present appellant. The learned Single Judge has rightly interfered with the settlement order in favour of the appellant and the same therefore does not require any interference in this appeal.
11. We have heard the learned counsels for the parties and we have examined the pleadings on record. We have also carefully perused the Judgment and Order of the learned Single Judge impugned in the present writ appeal. Before we proceed to deal with the issues urged before us, it is necessary to refer to the Rules governing the settlement of Fisheries. The settlement of fishery by way of tender is in terms of the Assam Fishery Rules, 1953. The relevant Rules are extracted below:-
7. Lease.- When the sale has been concluded, a lease and counter-part shall be interchanged in Forms Nos. 98 and 99 of the Assam Land Revenue manual, Volume II.
["8. Settling Authority.- a) The Deputy Commissioners or the Additional Deputy Commissioners in case of Sadar Sub-Divisions and the Sub-Divisional Officers in case of other Sub-Divisions shall be the authorities for settlement of all registered fisheries under tender system of sale in their respective jurisdiction.
(b) 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 unaviodable reasons beyond the control of the lessees, Government may extend Page No.# 10/24 the period of such lease supported by official reports as to the nature of cause in exceptionally special cases for a reasonable period so as to enable such lessees to make good the loss;
(ii) The State Government may also on the recommendation of the Director of Fisheries extend the period of lease of a fishery with an intending pisciculturist who should invariably be the sitting lessee and who agrees to accept such an extension at a revenue and for such other additional terms and conditions as may be specified by Government :
Provided that one of the conditions of extension of lease against piscicultural plan shall invariably be the imple-mentation of approved Scheme or Schemes of Development and improvement of such a fishery at the lessee's own cost within a target period to be fixed by Government.
The orders of extension of lease on the aforesaid grounds, passed by the State Government shall be final and no appeal shall lie against such orders of extension.
(c) Development of Fisheries and their consequential settlement.-
(i) The State Government on expiry of the term of settlement, may at any time, by a notification in the official Gazette, stop any fishery from further settlement under tender system and vest management of such a fishery with the Director of Fisheries for development. On publication of such Notification, the Deputy Commissioner or Sub-
Divisional Officers, as the case may be, shall handover the fishery to the Director of Fisheries:
Provided that the Director of Fisheries may call for tenders Page No.# 11/24 consistent with the relevant provisions of these rules for settlement of such a fishery and submit the same with his view thereon within fifteen days of the date of opening the tenders to Government for approval. The decision of the State Government in this behalf shall be final :
Provided further that such settlement shall not interfere or conflict with the work of development of such a fishery and that the provisions of Rule 50 of the Fishery Rules will not apply in case of such settlement.
["(ii) The State Government may at any time after constitution of the Assam Fisheries Development Corporation by a Notification in the Official Gazette, vest management of any registered fishery with the Assam Fisheries Development Corporation as considered necessary for the purpose of its development and management. On publication of such Notification the Deputy Commissioners, the Sub- Divisional Officers and the Director of Fisheries Assam, as the case may be shall hand over such fisheries to the Corporation."]1
(d) Confirmation of Sale.- All sales of fisheries in the District made by the Deputy Commissioners or Sub- Divisional Officers shall be reported not later than seven days from the date of such sales to the Commissioners of Divisions for confirmation in Form No. 100 of the Assam Land Revenue manual, Volume II Confirmation orders must be passed within a period of thirty days from the date of receipt of such proposals.
(e) Re-sale of fisheries.- When for default of kist money or for violation of any of the conditions of the fishery lease including any of Page No.# 12/24 the provisions of these rules by a lessee the fishery shall be put to re-sale under tender system at the risk of original lessee. Notice of re-sale shall be given as in the case of the original sale with additional proviso that the re-sale shall be at the risk of and on a account of the original lessee :
Provided that the question of such re-sale shall not be applicable where State Government permits extension of time for payment of kist money"]1.
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 auction:
1[Provide that the Government shall settle a 60% category fishery with special category of co-operative Societies, Non-Government Organisations and Self Help Groups consisting of 100% actual fishermen in the neighbourhood of the fishery concerned by the Tender System.] Explanation 1 : For the purpose of this rule, the words "special category" means and includes the Co-operative Societies, Self-Help Groups, Non-Governmental Organisations comprising of 100% actual fishermen of the Scheduled Caste community of Maimal community of erstwhile Cachar district. Who can not participate in competitive bidding because of poor financial condition due to famine, flood, draught, epidemic of any other circumstances which are beyond control of the society, non-Governmental Organisation or Self Help Groups as the case may be;
Explanation 2:- For the purpose of this rule "a 60% category Page No.# 13/24 fishery" means 60% of registered fisheries available in a Civil Sub- Division eligible for settlement in a particular year.]"
12. Rule 7 of the Assam Fishery Rules prescribes for lease. Rule- 8 of the Assam Fishery Rules prescribes for "Settling Authority". Rule- 12 Assam Fishery Rules prescribes that all registered fisheries shall be settled under tender system of sale in place of sale auction.
13. In the order dated 20th December, 2018 granting settlement to the appellant, in so far as the bid offered by the respondent No. 8/writ petitioner is concerned, it is seen that the first ground for the rejection of the respondent No. 8/writ petitioner's tender is the Fishing experience certificate submitted by the respondent No. 8/writ petitioner. The respondent authorities have rejected the Fishing Experience Certificate on the ground that the same had been issued in the name of the President of the society which does not cover all the members of the society. Upon perusal of the said certificate, it is seen that the same was issued in the name of the then President, namely, Sri Gobinda Ch. Das, Malegarh Gobindapur Fishery Cooperative Society Limited. A perusal of the said certificate, it is seen that the said fishery has been certified to have ample experience in fishing and other related activities like marketing and are fully involved in such activities for the past 20(twenty) years. The said certificate was issued by the District Fishery Development Officer, Bongaigaon vide Issue No. AFBNG.34/2018-19/116 dated 20.06.2018. A copy of the registration certificate issued by the Assistant Registrar Office Co-operative Society, Goalpara in the name of the Gobindapur Cooperative Society is also enclosed to the writ petition as revealed from the pleadings.
Page No.# 14/24 As per the Registration Certificate the said society was registered vide No. 101/58-59 dated 9th February, 1959, the area of operation of the society is also reflected in the certificate, namely, (i) Malagar, (ii) Gobindapur, (iii) Jitikibari and (iv) Goalpara Baluchar. As such merely because the fishing experience certificate was issued in the name of the President, it cannot be said that the same does not reflect the fishing experience of the Cooperative society.
14. In so far as the Bakijai Clearance Certificate is concerned, the settlement authority rejected the same on the ground that the same ought to have been issued by the Deputy Commissioner, Bongaigaon or by DCM, Goalpara. A Bakijai Clearance Certificate is required to ensure that there are no dues payable by an applicant/bidder in respect of any revenue to the Government. In short, the Bakijai Clearance Certificate can be termed to be a "No Dues Certificate" issued by the competent authority of the Government. The petitioner submitted a Bakijai Clearance Certificate issued by the Bakijai Officer of Cooperation Department, North Salmara, Abhayapuri which was rejected by the official respondents. A bare perusal of the Assam Fishery Rules, 1953 reveal that there is no specific requirement regarding submission of Bakijai Certificate/No Dues Certificate. However, considering the fact that purpose of settlement of a fishery by the Government is to earn revenue, a "No Dues Certificate"
cannot be considered to be totally irrelevant for the purpose of settlement of the fishery. The pleadings do not reveal any averment that any dues/revenue payable by the writ petitioner/ respondent No. 8 has remained payable to the Government. No such allegation has also been made by the writ appellant or by the State authorities in respect of the Page No.# 15/24 respondent No. 8. It was open for the official respondents to make necessary inquiries to find out if there are any dues payable to the Government by the respondent No. 8. Essentially, the objection raised by the official respondent No. 3 in respect of the Bakijai Clearance Certificate submitted by the respondent No. 8 is in respect of the form not in respect of the content.
15. A Co-ordinate Bench of this Court in Writ Appeal No. 294/2011 (Abu Talib -Vs- The Assam Fisheries Development Corporation Limited and Others), while interfering with the order of the learned Single Judge held that the Bakijai Clearance Certificate cannot be taken as a rigid requirement. This view of the Co-ordinate Bench has not been interfered with in any further appeal. Consequently there being already finding by the Co-ordinate Bench of this Court, we respectfully subscribe to the findings of the Co-ordinate Bench in this regard. The rejection of the Bakijai Certificate submitted by the writ petitioner/respondent No. 8, that it was an improper certificate in view of the Judgment of this Court in Abu Talib (supra), cannot be sustained.
16. The third ground on which the bid of the respondent No. 8 was rejected was that it did not fall within the neighbourhood of the fishery as the cooperative society registered in the district of Bongaigaon as the "distance certificate" was issued by the Circle Officer, Srijangram Revenue Circle, Abhayapuri. The distance certificate issued by the Circle Officer dated 22.06.2018 certifies that the Malegarh Gobindapur Fishery Co- operative Society Limited, is situated at Village Tin konia Part- I under Srijangram Revenue Circle and it is adjacent to the 1/77 Digdhar Page No.# 16/24 Brahmaputra Fishery Meenmahal.
17. It is strenuously urged by the appellant for consideration of this Court that "neighbourhood of the fishery" as mentioned in Clause-2 of the Notice dated 24.05.2018 will only mean "neighbourhood of the fishery"
within the district of Goalpara, as the NIT issued by the Deputy Commissioner, Goalpara and thereby debar the respondent No. 8 society from participating in the bid process. The contention of the appellant is that since it is the Deputy Commissioner, Goalpara, who had initiated the tender Notice, the terms "neighbourhood" will mean only those fishing societies situated within the District of Goalpara in the neighbourhood of the factory. The respondent No. 8 Society is a registered Co-operative society in the District of Bongaigaon. In order to decide the issue, it is necessary to understand the meaning of "neighbourhood" in the context of the Assam Fishery Rules.
18. To ascertain as to the territorial limits/extent of the concerned fishery, by our order dated 07.01.2021, both the Deputy Commissioners of Goalpara and Bongaigaon were directed to file affidavits to bring on record as to whether the concerned fishery i.e. 1/77 Digdhar Brahmaputra Fishery falls within the jurisdiction of district of Goalpara or is it divided between the districts of Goalpara and Bongaigaon. In deference to the order of this Court, an affidavit was filed by the Sub-Divisional Officer (SDO), Sadar district Bongaigaon wherein it is stated that the said fishery falls under the both Bongaigaon as well as Goalpara as per joint verification undertaken. The said affidavit enclosed a report of the survey conducted in this regard. A similar affidavit has been filed by the sub-
Page No.# 17/24 Divisional Officer (SDO), Sadar district Goalpara stating on record that the fishery concerned flows through both the Goalpara and Bongaigaon districts although about 80% of the fishery falls within the jurisdiction of Balijan Revenue Circle of Goalpara district.
19. To address this issue, it is necessary to refer to and examine the findings of the Court in this respect as well as the terms of the Tender clause. The tender notice in vernacular dated 24.05.2018 is extracted below:-
"অসম চৰককাৰ
উপকায়য়ুক্তৰ ককাৰৰকালয় ::::: গগকাৱকালপকাৰকা
জকাননন
ইয়কাৰ দকাৰকা সৰৰসকাধকাৰণ ৰকাইজৰ জকাতকাৰৰৰ জৰনকাৱকা হয় গৰ - গগকাৱকালপকাৰকা জজলকাৰ ৰকাললজকানকা ৰকাজহ চক্ৰৰ অন্তগৰত চৰককাৰন পঞনয়নভভূক্ত ১ /৭৭ নন লদিগধকাৰ ব্ৰহ্মপয়ুত্ৰ মনন মহলৰ চৰককাৰৰ FISH -19/09/2018- FISHERY/690 (ECF NO. 59470)DTD. 27/03/2018 নন পত্ৰ গৰকাৰগ লনলৰদিকা আহকান কৰকা হ'ল।
চৰককাৰৰ ৰৰৰমকান লনয়মকাৱলন অনয়ুৰকায়ন উক্ত মনন মহলৰ ৰছলৰ নয়ুনন্যতম ৰকাজহ ৭,৫৭,৪৫৮,০০ টককা ধকাৰৰন্য কৰকা হহৰছ।
এই লনলৰদিকাসমভূহ অলততিঃ উপকায়য়ুক্তৰ কক্ষত অহকা ২৫-০৬-২০১৮ ইন তকালৰখৰ লদিনৰ ২.০০ ৰজকালল গ্ৰহণ কৰকা হৰ আৰু উক্ত তকালৰখৰ লদিনৰ ৩.০০ ৰজকাত লনলৰদিকাসমভূহ গখকালকা হ'ৰ।
চৰৰসমভূহ-
১. মকাছমৰনয়কা গলকাকৰ দকাৰকা গঠঠিত সমৰকায় আত-সহকায়ক গগকাট NGO আলদিক গৰকাগন্যতকাৰ লভলৰত লনলৰদিকাৰৰকাৰগ লনৰৰকালচত কলৰ ৬০% গশ্ৰেণনভভক্ত মননমহলৰটকা ৭ ৰছৰৰ ৰকাৰৰ পৰন লদিয়কা হ'ৰ।
Page No.# 18/24
২. এশ শতকানশ অনয়ুসভূলচত জকালতৰ গলকাৰকৰৰ গঠঠিত সমৰকায় সলমলত নকাইৰকা অনয়ুসভূলচত জকালতৰ ৰবৃলৰৰ মকাছমৰনয়কা গলকাক, আত-সহকায়ক গগকাট, NGO আলদিৰয় লনলৰদিকা দিকালখল কলৰৰ পকালৰৰ। লনলৰদিকাককাৰন গগকাৱকালপকাৰকা জজলকাৰ আৰু মনন মহলখনৰ ওচৰ-চভৰয়ুৰনয়কা হ'ৰ লকালগৰ।
৩. লনলৰদিকা জজলকা উপকায়য়ুক্ত ককাৰৰকালয়তৰহ লনজৰৰষ্ট সকান আৰু তকালৰখত গ্ৰহণ কৰকা হ'ৰ ।
৪. ইচভক লনলৰদিকাককাৰনৰয় ২৫-০৬-২০১৮ ইন তকালৰখৰ লদিনৰ ২.০০ ৰজকালল ককাৰৰকালয় গখকালকা ৰককা সময়ত লনৰৰকালৰত লনলৰদিকা ৰকাকচত জমকা লদিৰ পকালৰৰ। লনৰৰকালৰত সময়ৰ লপছত গককাৰনকা লনলৰদিকা গ্ৰহণ কৰকা নহ'ৰ । লনলৰদিকা লনৰৰৰৰ কা কালৰত প -পত্ৰত পৰয়কাজননয় তৰন্য-পকালত সহ পভূৰণ কলৰ লনলৰদিকাসহ তলত উৰল্লেখ কৰকা পমকাণ পত্ৰসমভূহ সনলগ্ন কলৰ জমকা লদিৰ লকালগৰ।
20. A translation of Clause-2 of the terms and conditions of the NIT is extracted below:-
"2 The quotations can only be submitted by a co-operative society formed by 100% SC community people, a Self Help Group formed by the fishermen belonging to S.C. community, NGO, etc., and the bidders must be the residents of the Goalpara District and also neighbouring people of "Meenmahal".
21. The issue of neighboured in the context of a fishery came up for consideration earlier before this Court. A Co-ordinate Bench of this Court in Brahmaputra Par II Mach Mahal Samabai Samity Limited -Vs- State of Assam and Ors., reported in (2003) 1 GLR 528, while considering the proviso to Rule 12 of the Fishery Rules, 1953 held that it is a provision to ameliorate the socio economic conditions of the fishing population residing in the neighbourhood of the fishery concerned. This Court held that the provision embodies a social purpose and has been incorporated in the Rules to provide succour to the needy fishermen of the neighbourhood so Page No.# 19/24 as to provide the means of livelihood. It was held that the provision is therefore to secure the settlement of the fishery to the deserving and actual fishermen of the neighbourhood of the fishery. Although, there may be more than one eligible fishery society, the settlement under Rule 12 is to be made taking into account all relevant considerations and it has to be fair, reasonable and non-arbitrary. This Court held that:-
"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 fulfulling 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 defined 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 Page No.# 20/24 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."
22. In Raidak Burarchora Fishery Co-Operative Society Limited -Vs- State of Assam and Ors., reported in (2018) 2 GLR 19 another Co-ordinate Bench of this Court held that it was incumbent upon the respondent authority to make such enquiries in order to reach the satisfaction that not only the most deserving group is given the settlement but also to ensure that the interest of the Government revenue is adequately protected.
23. In Arabinda Das etc -Vs- State of Assam and Others reported in 1980 SCC OnLine Gau 13, the proviso to Rule 12 came to be considered by a Full Bench of this Court and it was held as under:-
"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 the 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 prerequisites 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".
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24. Having examined the various judicial pronouncements rendered by this Court, it is seen that the entire purpose and purport of the fishery Rules are two folds, namely, to garner revenue for the State and also to enable Fishing Community to eke their livelihood by permitting all the Fishing Community/Fishermen society to participate in such settlement process who may be engaged in Fishing in neighborhood by the concerned fishery.
25. As discussed above, the Rules categorically do not define "neighbourhood". However, upon examining the law laid down by this Court in the various judicial pronouncements discussed above, it is clear that the term "neighbourhood of the fishery" cannot be restricted to the territorial limits of a district or Sub-division as the case may be. A neighbourhood will have to be understood in the context of the areas through which the concerned fishery flows through or is situated in. As is revealed from the affidavits filed on behalf of the Deputy Commissioner, Bongaigaon and Deputy Commissioner, Goalpara, the fishery concerned flows through territorial limits of two districts, namely, Goalpara and Bongaigaon. Therefore, to restrict fishing community people or co- operative societies not registered within the Goalpara district but who are otherwise situated in the vicinity of the fishery but are within the territorial limits of another district/sub-Division, will lead to a situation not envisaged under the fishery Rules. The settlement process resorted to by the State Authorities besides enhancing the revenue for the State must also provide ample opportunity for the fishing community people/fishermen of co- operative societies who carry on their livelihood in the neighbourhood of any fishery, cannot be prevented from participating in a settlement Page No.# 22/24 process merely on the ground that they are not otherwise registered or situated in the territorial limits of the district through which the settlement by way of tender process is initiated.
26. The Assam Fishery Rules, 1953 have been framed under powers conferred under Regulations 155 and 156 of the Assam Land and Revenue Regulations, 1886 read with Section 6 of the Indian Fisheries Act, 1897. Under Regulation 16 of the Assam Land and Revenue Regulations, 1886, it is provided that the Deputy Commissioner with the previous sanction of the State Government in the prescribed manner may declare any collection of water, running or still, to be a fishery, and no right in any fishery so declared shall be deemed to have been acquired by the public or any person either before or after commencement of the Regulation except as provided for under Regulation 155. However, in express grant of a right to a fishery made by or on behalf of the Government or on any fishery rights acquired by proprietor before the commencement of the Regulation or the acquisition by the proprietor of such rights in any fishery forming after the commencement of this Regulation in his estate, will not be affected by the mandate of Section 16.
27. It is under the powers which can be traced to Regulation 16 and Regulation 155 of the Assam Land and Revenue Regulation, 1886 read with Section 6 of the Indian Fisheries Act, 1897 that enables a Deputy Commissioner of a District to make settlements in respect of fisheries. It is the prescription of the Rules that a Deputy Commissioner ordinarily proceeds to settle the fishery by way of tender process. It is in this context that a tender notice is issued by the Deputy Commissioner of a Page No.# 23/24 concerned district under which a fishery or a greater part thereof is situated. Such prescription in the Rules is necessary because it is a Deputy Commissioner who has been authorized to make settlement of fisheries. However, such administrative arrangements cannot restrict the rights of genuine fishing communities and/or fishermen societies who are otherwise situated within the neighbourhood of any such fishery. It is, therefore, held that merely because any Deputy Commissioner of a district has been authorized to call for a tender notice and to make settlement of a fishery, it will not restrict the rights of fishermen community and/or fishing societies who are otherwise situated within the vicinity and the neighbourhood of any such fishery although such cooperative societies/NGOs/Self Help Groups may be outside the territorial jurisdiction of the concerned revenue district. Such, artificial barrier or restriction to prevent members of the fishing community and/or fishermen societies situated in the neighbourhood of a concerned fishery, to prevent them from participation in the tender process, will be completely opposed to the purpose enshrined under the Assam Fishery Rules, 1953 read with Regulations 16 and 155 and Section 8 of Indian Fisheries Act. It is, therefore, held that it is beyond the purview of the Assam Fisheries Rules to restrict the definition "neighbourhood" only to the territorial limits of any particular district excluding the participation of fishing societies who are situated within the vicinity of the concerned fishery but within the territorial limits of any neighbouring Revenue District.
28. The rejection of respondent No. 8/writ petitioner on the ground of not being in the neighbourhood cannot be accepted to be proper in law. The learned Single Judge has correctly dealt with this aspect and has Page No.# 24/24 arrived at a conclusion with which we cannot find any reason to disagree. Accordingly, there is no merit in the writ appeal.
29. The Writ Appeal is, accordingly, dismissed. No order as to cost.
JUDGE CHIEF JUSTICE Comparing Assistant