Gauhati High Court
WP(C)/10/2025 on 26 March, 2026
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/21
GAHC010026462025
2026:GAU-AS:4574
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Writ Petition (C)/10/2025
M/s Pub Nasatra Fishery Co-operative Society Limited, A
registered Co-Operative Society represented by its
Secretary, Narahari Das, S/o Late Narayan Das, R/o Village
- Patbaushi, P.O.- Pataushi, Pin-781314, District - Barpeta,
Assam.
..................Petitioner
-Versus-
1. The State of Assam, represented by the Additional
Secretary to the Government of Assam, Dispur, Guwahati-
781006, Kamrup (M), Assam.
2. The Deputy Commissioner, Barpeta, District - Barpeta,
Assam, Pin-781301.
3. M/s Ganakpara Fishery Co-operative Society Limited,
represented by its Secretary Gobinda Sarka, R/o Village -
Ganakpara, P.O.-Makrikuchi, P.S.-Tarabari, District -
Barpeta, Assam, Pin-781305.
...................Respondents
Page No. 2/21
With Writ Petition (C)/706/2025 Sri Narahari Das, S/o Late Narayan Das, R/o Village -
Patbaushi, P.O. Pataushi, Pin 781314, District - Barpeta, Assam.
..................Petitioner
-Versus-
1. The State of Assam, represented by the Additional Secretary to the Government of Assam, Dispur, Guwahati- 781006, Kamrup (M), Assam.
2. The Deputy Commissioner, Barpeta, District - Barpeta, Assam, Pin-781301.
3. The Additional Commissioner, Barpeta [Fishery Branch], Barpeta, Assam, Pin - 781301.
...................Respondents Advocates :
Petitioner : Mr. S. Kataki, Advocate Respondent no. 1 : Mr. P. Sharma, Standing Counsel, Fishery Department Respondent no. 2 In W.P.[C] no. 10/2025 : Mr. S.R. Baruah, Junior Government Advocate. & Respondent nos. 2 & 3 In W.P.[C] no. 706/2025 Respondent no. 3 In W.P.[C] no. 10/2025 : Ms. P. Chakraborty, Advocate. Page No. 3/21 Date on which judgment is reserved : NA Date of pronouncement of Judgment : 26.03.2026
Whether the pronouncement is of the operative part of the judgment ? : No Whether the full judgment has been pronounced ? : Yes BEFORE HON'BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER [oral]
1. The two writ petitions - W.P.[C] no. 10/2025 and W.P.[C] no. 706/2025, preferred under Article 226 of the Constitution - are in respect of two separate fisheries, which are located in Barpeta district of Assam. The fishery involved in the writ petition, W.P.[C] no. 10/2025 is No. 81 Mandiakur Fishery and the fishery involved in the other writ petition, W.P.[C] no. 706/2025 is No. 75, 76 and 77 Rowmari Group Fishery [hereinafter referred to as 'Mandiakur Fishery' and 'Rowmari Group Fishery' respectively, at places, for ease for reference].
2. As an issue involved in the writ petition, W.P.[C] no. 10/2025 is related to the subject-matter involved in the other writ petition, W.P.[C] no. 706/2025, both the writ petitions are taken up together for final consideration at the request of the learned counsel for the parties in both the writ petitions.
3. Mandiakur Fishery is a 60% category fishery and as per the provisions of Rule 12 of the Assam Fishery Rules, 1953, as amended ['the Fishery Rules', for short], the State Government in the Fishery Department is the settling authority for a 60% category fishery. On the other hand, the Rowmari Page No. 4/21 Group Fishery is a 40% category fishery and as per Rule 8 of the Fishery Rules, 1953, the jurisdictional Deputy Commissioner or the Additional Deputy Commissioner in case of Sadar Sub-Divisions and the Sub-Divisional Officers in case of other Sub-Divisions, as the case may be, is the settling authority for 40% category fisheries. Therefore, for Mandiakur Fishery, the State Government in the Fishery Department is the settling authority and for Rowmari Group Fishery, the jurisdictional Deputy Commissioner [presently, District Commissioner], Barpeta is the settling authority.
4. Before dilating on the issues involved, the factual backgrounds leading to the institution of the two writ petitions are required to be exposited first.
W.P.[C] no. 10/20255. By a Tender Notice dated 02.02.2024, the District Commissioner, Barpeta as the Tender Inviting Authority invited tenders from eligible bidders for settlement of Mandiakur Fishery for a period of seven years. In the Tender Notice, the annual yearly revenue of Mandiakur Fishery was mentioned as Rs. 30,000/- for the first year by the Tender Inviting Authority. As per the Tender Notice, the last date for submission of bids was 22.02.2024. In response to the Tender Notice, seven bidders including the petitioner society and the respondent no. 3 society, submitted their tenders. As per the proviso to Rule 12 of the Fishery Rules, a 60% category fishery can be settled with special category of co-operative societies, non-governmental organizations [NGOs] and self-help groups [SHGs] consisting of 100% fishermen in the neighbourhood of the fishery concerned. Therefore, the tender process for Mandiakur Fishery was limited to such category of bidders. On receipt of the tenders, the Evaluation Committee constituted by the District Commissioner, Barpeta opened the tenders on 05.03.2024 and after scrutiny of the tenders and the documents submitted in support of the tenders, the Evaluation Committee prepared a Comparative Statement Page No. 5/21 indicating about receipt or non-receipt of the essential documents, as indicated in the Tender Notice, along with the tendered value offered by the seven participant tenderers. As for the purpose of the settlement process involved in the writ petition, the details recorded in respect of all the seven participant tenderers in the Comparative Statements are not necessary and the discussion can be made limited to the highest three participant tenderers with their tendered values, those details are only extracted in the following table :-
Sl. Names of the Societies Rates
1. Mandia Meen Samabay Samity Ltd. Rs. 11,97,000/-
2. Pub Nasatra Baradi Fishery Co-op. Society Ltd. [the petitioner] Rs. 11,09,500/-
3. Ganakpara Fishery Co-op. Society Ltd. [the respondent no. 3] Rs. 10,85,00/-
6. As the Fishery Department in the State Government is the Tender Settling Authority for the 60% category fishery, Mandiakur Fishery, the District Commissioner, Barpeta forwarded the tender papers and the Comparative Statement to the Fishery Department on 02.07.2024 vide an Office Letter bearing no. BRF.3/2013/288 to take the final decision in the matter of settlement of Mandiakur Fishery.
7. After examination and evaluation of the tenders and the documents submitted in support of the tenders of the participant tenderers, the Tender Settling Authority passed the impugned Order dated 16.12.2024 whereby Mandiakur Fishery had been settled with the respondent no. 3 society at its tendered value of Rs. 10,85,000/- for a period of seven years from the date of handing over possession of Mandiakur Fishery.
8. The Tender Settling Authority found the tender of M/s Mandia Meen Samabay Samity Ltd. deficient due to non-submission of a number of documents in terms of the Tender Notice. The tender of the petitioner Page No. 6/21 society was adjudged non-responsive while accepting the tender of the respondent no. 3 society as the responsive one. To arrive at such a decision, the Tender Settling Authority had recorded its reasons as under :-
2. M/s Pub Na Satra Baradi FCS Ltd.
The Society has quoted Rs 11,09,500.00 for 7 years which is the 2nd highest financial bid.
The Society has submitted all the required documents except Caste Certificate in the name of the of the Authorized office bearer which is a must as Rule 12 categorically states that a Cooperative Society, NGO or SHG must comprise of actual Fishermen of SC Community or Maimal Community of erstwhile Cachar district. The Society has furnished a Bakijai Certificate issued by Competent Authority stating therein that there is no Bakijai dues against the society. The said Certificate is shown to be valid for 365 days whereas as per provision of RTPS Act 2012, validity of such Certificate is 90 days only.
Further a complaint has been filed against validity of the Bakijai Certificate by another society wherein it has been alleged that Pub Na Satra Baradi FCS Ltd. was a defaulter of Rs. 5,15,275.00 respect of 75 / 76 & 77 No. Rowmari Group Fishery supported by report of SDO(S) Barpeta vide No. BRF.2/96/299 dated 12.03.2024. As per report of C.O., Baghbar, the society is located at a distance of 6 KM from the fishery.
3. M/s Ganakpara FCS Ltd.
Page No. 7/21The Society has offered Rs.10,85,000.00 for 7 years which is the 3rd highest bid. The Society has submitted all the required documents as per NIT which are found in order.
As regards neighbourhood issue, as per report of C.O., it is 6 KM. Another society has objected to the distance shown and claimed that distance as 22 KM (Approx). The complaint was inquired through C.O., Baghbar by Addl. DC, Barpeta. The C.O. vide report dated 25.06.2024 clarified that the distance as per main PWD Road is 25 Kms from the Society to the Fishery. But as per local village road from Mandia Bhedhara Gaon via Palhaji, it is about 7 / 8 Kms which is mostly used by local people.
9. Aggrieved by the said decision of the Tender Settling Authority to settle Mandiakur Fishery in favour of the respondent no. 3 society, the petitioner has instituted the writ petition seeking setting aside of the Order of Settlement dated 16.12.2024 with a further direction to declare the decision of the Tender Settling Authority to adjudge the tender of the petitioner society as a non-responsive one and to declare it as a responsive one for settlement of Mandiakur Fishery in its favour.
W.P.[C] no. 706/202510. The fishery named Rowmari Group Fishery, District - Barpeta, a 40% category fishery, came to be settled in favour of the petitioner by an Order dated 27.01.2017 for a period of seven years at a tendered value of Rs. 1,41,000/- per annum, pursuant to a tender process initiated by the District Commissioner, Barpeta as a Tender Inviting Authority - cum - Tender Settling Authority. Under the provisions of the Fishery Rules, a 40% category fishery can be settled with individual members of actual fisherman belonging to the scheduled castes/scheduled tribes/maimal community and Page No. 8/21 other backward classes apart from a registered co-operative fishery society formed by members of actual fisherman belonging to the scheduled castes / maimal community / scheduled tribes and other backward classes.
11. As per the Fishery Lease executed on 27.01.2017, the period of settlement of seven years was to be counted from the date of handing over possession of the fishery upon payment of the yearly revenue of Rs. 1,41,000/- and completion of other requisite formalities. It is the case of the petitioner that apart from execution of the Fishery Lease on 27.01.2017, the petitioner completed all the formalities and deposited an amount of Rs. 1,41,000/- as required. Thereafter, he proceeded to operate the fishery. But due to obstacles created by the persons from nearby locality unauthorizedly, the petitioner could not operate in the entire area of Rowmari Group Fishery having an area of about 160 Bighas. The encroachers did allow the petitioner to operate and fish properly in Rowmari Group Fishery.
12. The petitioner represented before the authorities including the Tender Settling Authority to evict the encroachers who were encroaching the areas of Rowmari Group Fishery so as to enable the petitioner to operate and fish in the fishery and to deposit the yearly revenue. The petitioner has stated that when such representations of the petitioner seemed to have fallen into deaf ears, the petitioner was constrained to institute a title suit, Title Suit no. 05/2018 in the Court of Civil Judge [Senior Division], Barpeta against six nos. of encroachers making them defendants, with the District Commissioner, Barpeta as the proforma defendant. The petitioner as the plaintiff sought reliefs in the form of a declaration of the right, title and interest for the areas of Rowmari Group Fishery by declaring the defendants as illegal trespassers; and also for eviction of the defendants over the areas of Rowmari Group Fishery, which was made the suit land; and delivery of khas possession of the suit land.
Page No. 9/2113. During the pendency of the title suit, the District Commissioner, Barpeta, who was made a proforma respondent, filed a petition for his impleadment as plaintiff no. 2 by transposition. After the said petition for transposition was allowed, the District Commissioner, Barpeta was made plaintiff no. 2. After his impleadment by transposition as plaintiff no. 2, the District Commissioner filed an amended plaint wherein he impleaded sixty nos. of persons as defendants as against six nos. of defendants impleaded earlier by the petitioner as the plaintiff no. 1. By the amended plaint, reliefs in the form of a declaration that the defendants were illegal trespassers having no right, title and interest over the suit land was sought for; apart from a relief in the form of recovery of khas possession by eviction of the defendants from the suit land, in addition to permanent injunction.
14. In the additional plaint submitted by the District Commissioner, Barpeta as plaintiff no. 2, a parcel of land measuring 357 Bighas 4 Kathas 0 Lessas, situate at Kawaimari Block, Mouza - Paka, Sarthebari Revenue Circle, District - Barpeta was termed as Schedule - A land. It was pleaded that out of Schedule - A land, an area of land measuring 19 Bighas 1 Katha under Government Dag no. 371, and another area of land measuring 94 Bighas 3 Kathas 132 Lessas under Government Dag no. 216, was a natural water body within Rowmari Group Fishery and the said area of land was the subject-matter of the Fishery Lease executed on 27.01.2017 for settlement for a period of seven years at a rate of Rs. 1,41,000/- per annum. By the Fishery Lease dated 27.01.2017, the plaintiff no. 1, that is, the petitioner was allowed to enjoy the right, title and interest over Rowmari Group Fishery. It was pleaded to the effect that when the plaintiff no. 1 was making preparation for fishing, the defendants restrained him from the fishing in Rowmari Group Fishery. On getting such information, the District Commissioner, Barpeta directed the jurisdictional Circle Officer to carry out a fresh survey of demarcation of Rowmari Group Fishery and it was established in the survey that there was illegal encroachment over a large Page No. 10/21 area of Rowmari Group fishery. The extent of encroachment in respect of Rowmari Group Fishery was found to be 106 Bighas by the defendants. In the Schedule to the amended plaint, the plaintiff no. 2 submitted a list giving the details of the encroached areas of land of Rowmari Group Fishery as Schedule - B land.
15. With the amended plaint, the District Commissioner, Barpeta as the plaintiff no. 2 had inter alia sought the reliefs : [a] to declare that the plaintiff no. 1 had every the right to carry on fishing as lessee of Rowmari Group Fishery; [b] to declare the defendants are illegal trespassers over the suit land having no right, title and interest over the suit land; and [c] a decree to evict the defendants from over the suit land and to deliver its khas possession in favour of the plaintiff no. 2.
16. The Court of Civil Judge [Senior Division], Barpeta ['the Trial Court', for short] framed a preliminary issue on 13.05.2019 to the effect that 'whether the suit is maintainable in its present form and manner?'. The Trial Court heard all the sides on the preliminary issue so framed. After hearing the parties and perusal of the materials available in the case records, the preliminary issue was decided by an Order dated 06.02.2024 against the plaintiffs. In the Order dated 06.02.2024, the Trial Court had taken note of the fact that the illegal encroachment of the defendants in the area of Rowmari Group Fishery was to the extent of 106 Bighas, as described in Schedule-B.
17. The Trial Court had found that under Regulation 154 of the Assam Land and Revenue Regulation, 1886 ['the Regulation', for short], it was specifically provided that no civil court shall exercise its jurisdiction in any matter regarding ejectment of any person from land over which no person had acquired the right of proprietor, land holder or settlement holder. The Trial Court had observed that the plaintiffs were fully aware that the suit land Page No. 11/21 was Government land. Regulation 12 of the Assam Land and Revenue Regulation had provided power to the State Government to make rules in case any land over which no person had acquired the right of proprietor, land holder or settlement holder under the Regulation, to provide for the disposal by way of grant or otherwise of such land or the ejectment of any persons who had entered into unauthorised occupation of such lands. Rule 18 of the Settlement Rules, framed under Regulation 12 of the Regulation, had provided the power, authority and jurisdiction to the District Commissioner to eject any person from land over which the person had not acquired the rights of proprietor, land holder or settlement holder, by following the procedure prescribed therein. Taking notice of the power, authority and jurisdiction provided in Rule 18 of the Settlement Rules, the Trial Court came to a finding that the power, authority and jurisdiction for ejectment of an unauthorised person from Government land was vested on the District Commissioner itself. On reaching findings that the District Commissioner himself had the power, authority and jurisdiction to initiate the process of ejectment of illegal encroachers encroaching the suit lands, mentioned as Schedule-A land and Schedule-B land and Regulation 154 of the Assam Land and Revenue Regulation, 1886 had prescribed a bar on the jurisdiction of the civil court, the preliminary issue came to be decided against the plaintiffs by holding that the suit was not maintainable.
18. The further case of the petitioner is that after dismissal of Title Suit no.
05/2018 by the Order dated 06.02.2024, the District Commissioner, Barpeta served two demand notices, dated 10.01.2025 & dated 27.01.2025, upon him. In the said two demand notices, similarly worded, it was mentioned that the petitioner in spite of enjoying the possession of Rowmari Group Fishery during the period from 27.01.2017 to 26.01.2024, failed to deposit the instalment amounts in terms of the Lease Deed dated 27.01.2017 and as a result, the outstanding arrear amount reached a figure of Rs. 5,15,275/-. By the demand notices, the petitioner has been asked to deposit Page No. 12/21 the said amount in the treasury immediately. Aggrieved by the manner in which the said two demand notices have been served upon him, the petitioner has instituted the writ petition.
19. I have heard Mr. S. Kataki, learned counsel for the petitioner in both the writ petitions; Mr. P. Sharma, learned Standing Counsel, Fishery Department for the respondent no. 1 in both the writ petitions; Mr. S.R. Baruah, learned Junior Government Advocate, Assam for the respondent no. 2 in W.P.[C] no. 10/2025 and the respondent nos. 2 & 3 in W.P.[C] no. 706/2025; and Ms. P. Chakraborty, learned counsel for the respondent no. 3 in W.P.[C] no. 10/2025.
20. In connection with W.P.[C] no. 10/2025, Mr. Kataki, learned counsel for the petitioner has pointed out that the tender of the petitioner society was declared non-responsive on three counts. But none of the three counts would be sustainable in law. The caste certificate in the name of the authorized office bearer of a registered fishery co-operative society as a tenderer was not a requirement of the Tender Notice dated 02.02.2024 and the Fishery Rules. Nowhere in Rule 12 of the Fishery Rules has laid down that the caste certificate in the name of the authorized office bearer of the bidder registered fishery co-operative society would be necessary. As regards Bakijai certificate, Mr. Kataki has contended that a similar Baikijai Certificate was also submitted by the respondent no. 3 society with its tender. When the Bakijai Certificate submitted by the respondent no. 3 society with validity of 365 days could be accepted a valid one there can be no reason for non-acceptance of the Bakijai Certificate submitted by the petitioner Society having validity of 365 days. Both the Bakijai Certificates were issued by the same authority, that is, the District Commissioner, Barpeta who incidentally is the Tender Inviting Authority. On the point of defaulter, he has contended that it was Sri Narahari Das who was served with Demand Notices, dated 10.01.2025 & dated 27.01.2025 whereby an Page No. 13/21 amount of Rs. 5,15,275/- was demanded, in connection with Rowmari Group Fishery, allegedly in an arbitrary manner and such alleged default on the part of Sri Narahari Das cannot be made relatable to the petitioner society even though Sri Narahari Das is the Secretary of the petitioner Society. With such contentions, Mr. Kataki has submitted that none of the grounds on which the tender of the petitioner Society was declared non- responsive is sustainable in law and consequently, the impugned Order of Settlement dated 16.12.2024 made in favour of the respondent no. 3 society is liable to be set aside and quashed. As the petitioner society has tendered a higher amount than the respondent no. 3 society, a direction to settle Mandiakur Fishery is called for.
21. On behalf of the petitioner in W.P.[C] no. 706/2025, Mr. Kataki has submitted that the District Commissioner, Barpeta who is the Tender Inviting Authority as well as the Tender Settling Authority for Rowmari Group Fishery, had himself admitted in Title Suit no. 05/2018 that a large chunk of areas of Rowmari Group Fishery were under encroachment of illegal trespassers. Such admission was made on the basis of a Report dated 24.04.2018 of the Circle Officer, Sarthebari Revenue Circle within whose jurisdictional area, Rowmari Group Fishery is located. The petitioner has claimed that in the Lease Deed dated 27.01.2017, it was clearly mentioned that it was within an area of 160 Bighas of Rowmari Group Fishery the petitioner was allowed to operate and fish. But out of the said Fishery area, an area of 106 Bighas was encroached by illegal trespassers, as admitted by the District Commissioner, Barpeta himself. The encroachers did not allow the petitioner to do fishing in Rowmari Group Fishery right since the beginning of the lease period. The petitioner after the Lease Deed dated 27.01.2017 deposited an amount of Rs. 4,71,725/-. In such backdrop, the demand of Rs. 5,15,275/- by the impugned Demand Notices is clearly arbitrary and unjust.
Page No. 14/2122. Mr. Sharma, learned Standing Counsel, Fishery Department appearing for the respondent no. 1, which respondent as the Settling Authority has not brought its stand in any counter affidavit, has supported the Order dated 16.12.2024. He has submitted that the grounds of rejection recorded against the petitioner society's bid are not arbitrary. He has further submitted that since Mandiakur Fishery has already been settled in favour of the respondent no. 3 society and the respondent no. 3 society has been operating the Fishery for more than one year without any default till date, there is no case for interference with the impugned Order dated 16.12.2024 at this stage.
23. Mr. Baruah, learned Junior Government Advocate, Assam appearing for the respondent no. 2 in W.P.[C] no. 10/2025 has referred to the counter affidavit filed by the said respondent to submit that Sri Narahari Das was settled with Rowmari Group Fishery on 27.01.2017 for a period of seven years from the date of handing over possession of the Fishery on payment of a yearly revenue of Rs. 1,41,000/- and Sri Narahari Das had defaulted to deposit the installment amounts to the extent of Rs. 5,15,275/- which amount had accumulated as arrear. Sri Narahari Das is clearly in default and as a consequence, the petitioner society wherein Sri Narahari Das acts as the Secretary, is also in default. Mr. Baruah has submitted that the impugned decision has been passed by the respondent no. 1 and there is no role of the respondent no. 2 in passing the impugned Order.
24. Appearing for the respondent nos. 2 & 3 in W.P.[C] no. 706/2025, Mr. Baruah on the basis of instructions received from the respondent no. 3 in the form of an Office Letter bearing no. BRF-2/97/460 dated 24.02.2025 [marked as Document 'A' and kept with the case record], has submitted that the petitioner deposited an amount of Rs. 4,71,725/- as security and installment amounts on six different dates for exercising his fishing rights. He has, however, submitted fairly that no instruction has been received as Page No. 15/21 regards the demand made for the amount of Rs. 5,15,275/- vide the two impugned demand notices. It is his contention that since only an area of 106 Bighas was under encroachment, remaining area out of 160 Bighas of the Fishery are still available for fishing to the petitioner.
25. Ms. Chakraborty, learned counsel for the respondent no. 3 society in W.P.[C] no. 10/2025 has supported the Order of Settlement dated 16.12.2024. Ms. Chakraborty has submitted that after the Order of Settlement dated 16.12.2024, the respondent no. 3 society was handed over possession of Mandiakur Fishery on 01.01.2025 and since then, the respondent no. 3 society is operating the Fishery. In the process, the respondent no. 3 society has invested a huge amount of money and therefore, any interference with the Order of Settlement dated 16.12.2024, at this stage, would cause immense prejudice to the respondent no. 3 society.
26. I have duly considered the submissions advanced by the learned counsel for the parties and have also gone through the materials brought on record by the parties through their pleadings.
W.P.[C] no. 10/202527. From the facts already alluded hereinabove and not in dispute, it has emerged that in response to the Tender Notice dated 02.02.2024, seven bidders who are registered fishery cooperative societies, submitted their tenders. In the Tender Notice, it was mentioned that the tenders were invited as per the latest rules and requirements of the Government.
28. In a Notification bearing no. FISH.19/65/2017-FISHERY/1 [eCF No. 50022] dated 18.01.2018, the Fishery Department, Government of Assam had laid down a detailed procedure for submission of documents with the tender Page No. 16/21 submitted in tender processes pertaining to settlement of 60% category fisheries in order to bring uniformity in all tender processes initiated through tender notices published by the jurisdictional District Commissioners / Sub- Divisional Officers [C] in order to maintain transparency. The said Notification dated 18.01.2018 was published in the Assam Gazette in its Issue no. 14 dated 04.04.2018.
29. In the Gazette Notification, it is mentioned that Bakijai Clearance Certificate is to be furnished by the Bakijai authority under the concerned District Commissioner where the Society / NGO is registered and the Bakijai Certificate should invariably be in the name of the Society / NGO / SHG and not in the name of the office bearers of the Society / NGO / SHG. Nowhere in Rule 12 of the Fishery Rules, it is set forth that the caste certificate in the name of the authorized office bearer of the bidder registered fishery co- operative society is a requirement. The category of persons who can submit bids for settlement of a 60% category fishery in terms of Rule 12 of the Fishery Rules is already stated hereinabove. Explanation to Rule 12 has specified that special category means and includes co-operative societies, self-help groups, non-Governmental organizations comprising of 100% actual fishermen of schedule caste community or Maimal community of erstwhile Cachar district.
30. In the Gazette Notification [supra], it has been prescribed that a tenderer fishery co-operative society has to submit one certificate certifying that the society consists of 100% actual fisherman. The certificate is to be issued by the jurisdictional Assistant Registrar of Cooperative Societies certifying that all the members of the co-operative society, SHGs, NGOs are actual fishermen belonging to the schedule caste community or Maimal community of erstwhile Cachar district of Assam.
Page No. 17/2131. From the Gazette Notification, it is discernible that submission of 100% actual fishermen certificate in the manner stipulated therein is only essential. If the authorized office bearer is a member of the bidder fishery co-operative society then he automatically comes within the scope and ambit of the 100% actual fishermen certificate submitted by the tenderer society with its tender. It is settled that while executive instructions cannot override or contradict statutory rules, the State Government can issue executive instructions to fill in gaps therein or to supplement statutory rules on a particular matter, provided the instructions are not inconsistent with the statutory rules. With Rule 12 silent on the caste certificate, the instructions in the Gazette Notification are to be applied and adhered to. The ground of rejection relating to non-submission of caste certificate in the name of the authorized office bearer of the petitioner society is, therefore, clearly untenable and arbitrary and the same is found not in terms of the Tender Notice and the Fishery Rules.
32. In the Gazette Notification nothing has been prescribed regarding validity period of the Bakijai Clearance Certificate. The Bakijai Clearance Certificate submitted by the petitioner society and the respondent no. 3 society along with their tenders are available in the case record. On perusal, it is noticed that both the Bakijai Clearance Certificates were issued with validity of 365 days from the date of issuance. Both the Bakijai Clearance Certificates were issued by the office of the District Commissioner, Barpeta, who was also the Tender Inviting Authority. The Bakijai Clearance Certificate in favour of the petitioner society was issued on 26.12.2023 whereas the Bakijai Clearance Certificate in favour of the respondent no. 3 society was issued on 22.12.2023. The Bakijai Clearance Certificate dated 26.12.2023 was issued in the name of the petitioner society. Therefore, this Court finds that the Bakijai Clearance Certificate dated 26.12.2023 is in conformity with the conditions laid down in the Gazette Notification [supra] and therefore, also in conformity with the Tender Notice. When the validity period of the Bakijai Page No. 18/21 Clearance Certificate issued in favour of the respondent no. 3 Society was 365 days and the same was accepted by the Tendering Settling Authority as a valid one, it is beyond comprehension of this court how the Bakijai Clearance Certificate dated 26.12.2023 issued by the District Commissioner, Barpeta and in favour of the petitioner Society with a validity period of 365 days can be treated as non-acceptable. Therefore, that part of the impugned decision contained in the Order of Settlement dated 16.12.2024 of the Tender Settling Authority is clearly unsustainable in law.
33. A fishery co-operative society is registered under the provisions of the Assam Co-operative Societies Act, 1949 and/or the Assam Co-operative Societies Act, 2007. As per Section 117 of the Assam Co-operative Societies Act, 2007, every registered co-operative society shall be deemed to be a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to hold property, to enter into contracts, institute and defend suits and other legal proceedings and to do all things necessary for the purpose for which it was constituted. Section 118 of the Act has prescribed for the register of members. A registered fishery co-operative society being a body corporate, is distinct legal entity, separate from its members. Sri Narahari Das is a shareholder and also acts in the capacity of Secretary of the petitioner society. But in the process of settlement of Rowmari Group Fishery, Sri Narahari Das entered into the Lease Deed on 27.01.2017 in his individual capacity as an individual can also be a settlement holder in respect of 40% category fishery. The Rowmari Group Fishery being a 40% category fishery, the Tender Settling Authority had executed the Lease Deed with Sri Narahari Das for settlement of Rowmari Group Fishery for a period of seven years at an agreed yearly lease amount of Rs. 1,41,000/-. If Sri Narahari Das in operating Rowmari Group Fishery had defaulted in any manner to deposit an amount of Rs. 5,15,275/- in terms of the Lease Deed dated 27.01.2017, such liability which Sri Narahari Das had incurred in his individual capacity and which is not in Page No. 19/21 any manner relatable to him as a shareholder and the Secretary of the petitioner society viz. M/s Pub Na-Satra Fishery Cooperative Society Limited, such purported default cannot be a ground to adjudge the tender of the petitioner society submitted for settlement of Mandiakur Fishery as non- responsive.
34. For the reasons mentioned hereinabove, none of the grounds on which the Tender Settling Authority [the respondent no. 1] had adjudged the tender of the petitioner society as non-responsive is found sustainable in law. The grounds for rejection are found to be bad and arbitrary. Consequently, the impugned Order of Settlement dated 16.12.2024 is found arbitrary, illegal and unsustainable in law and the same is liable to be set aside and quashed. It is accordingly set aside and quashed. Resultantly, the settlement of Mandiakur Fishery made in favour of the respondent no. 3 society also stands interfered with.
35. With the setting aside of the Order of Settlement dated 16.12.2024, the Tender Settling Authority, that is, the respondent no. 1 shall proceed to consider the tenders received in response to the Tender Notice dated 02.02.2024 afresh in terms of the Fishery Rules, the Gazette Notification [supra], the Tender Notice and observations made hereinabove in order to bring the process of settlement of Mandiakur Fishery for the remaining period out of period of seven years, to a logical conclusion as expeditiously as possible, but within an outer limit of one month from today.
W.P.[C] no. 706/202536. As regards the writ petition, W.P.[C] no. 706/2025, it has emerged from the discussion made above that there was clearly an admission from the Tender Settling Authority, that is, the District Commissioner, Barpeta that a substantial area of Rowmari Group Fishery was under encroachment of a Page No. 20/21 large number of illegal trespassers. As per the Lease Deed dated 27.01.2017, the total area of the Rowmari Group Fishery which was sought to be handed over to the petitioner was 160 Bighas. In the case projected by the District Commissioner, Barpeta in Title Suit no. 05/2018, the extent of encroachment was to the extent of 106 Bighas and the said 106 Bighas was under encroachment of at least sixty illegal trespassers who were made defendants by the District Commissioner, Barpeta in his additional plaint filed after his transposition as plaintiff no. 2. The fact of illegal encroachment to the extent of 106 Bighas was stated to be revealed from a Report dated 24.04.2018 submitted by the Circle Officer, Sarthebari Revenue Circle, who was directed by the District Commissioner, Barpeta himself to carry on a survey and demarcation of Rowmari Group Fishery.
37. The District Commissioner, Barpeta as the Tender Settling Authority had himself admitted that the petitioner was not able to operate and to carry out fishing in Rowmari Group Fishery even after execution of the Lease Deed on 27.01.2017 and had himself had sought the reliefs of eviction of the illegal trespassers and recovery of khas possession of 106 Bighas of area out of 160 Bighas to him in Title Suit no. 05/2018. The District Commissioner, Barpeta by virtue of the power, authority and jurisdiction conferred on him by the Assam Land and Revenue Regulation, 1886 and the Settlement Rules framed thereunder, is himself the authority to make the areas of Rowmari Group Fishery, which is covered by Government lands, encroachment free by eviction of all the illegal trespassers and he is under statutory obligation to do so. When instead of exercising such statutory power to evict the illegal trespassers, the District Commissioner, Barpeta approached the Trial Court to seek the reliefs in the form of eviction and recovery of possession, the Title Suit no. 05/2018 was dismissed on the preliminary issue, for reasons discussed hereinabove. The Trial Court had, in fact, reminded the District Commissioner, Barpeta to discharge the statutory obligations cast upon him.
Page No. 21/2138. When the District Commissioner, Barpeta himself had failed to hand over the possession of Rowmari Group Fishery in an encroachment free manner by taking appropriate and timely actions to evict the illegal trespassers, the demand made by him for the amount of Rs. 5,15,275/- vide the impugned Demand Notices, dated 10.01.2025 & dated 27.01.2025, are clearly unjust and arbitrary. Such action behind demanding the said amount as outstanding arrear is an action which cannot be termed as just. In such view of the matter, the impugned Demand Notices, dated 10.01.2025 & dated 27.01.2025, are liable to be set aside and quashed. Consequently, both the Demand Notice, dated 10.01.2025 & dated 27.01.2025, are set aside and quashed. If the Settling Authority finds that any amount is still due from the petitioner, over and above Rs. 4,71,725/- stated to have been deposited already by the petitioner pursuant to the Lease Deed dated 27.01.2017, it remains open for the Settling Authority to bring the same to the notice of the petitioner with detailed calculation and proper justifications with a corresponding opportunity to the petitioner to respond to the same.
39. With the observations made and directions given above, the two writ petitions stand allowed to the extents indicated above. There shall, however, be no order as to cost.
JUDGE Comparing Assistant Digitally signed by Pallabi Das Date: 2026.03.31 01:11:08 +05'30'