Gauhati High Court
WP(C)/5696/2021 on 21 June, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/23
GAHC010167062021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
W.P.(C) 5696/2021
29 No. Nekera Lekera Min Samabay Samity Limited,
Morigaon,
District - Morigaon, Assam,
Represented by its Secretary,
Sri Niranjan Roy,
S/o- Late Girindra Roy,
Aged about 43 Years,
P.O. - Borpak & P.S. - Mayong,
District - Morigaon, Assam.
.................. Petitioner
-Versus-
1. The State of Assam,
Represented by the
Principal Secretary
to the Government of Assam,
Fishery Department,
Dispur, Guwahati-06.
2. The Joint Secretary
to the Government of Assam,
Fishery Department.
3. The Deputy Secretary
to the Government of Assam,
Fishery Department,
Dispur, Guwahati-06.
4. The Deputy Commissioner,
Morigaon, Assam.
Page No.# 2/23
5. The District Development Commissioner,
Morigaon, Assam.
6. The Circle Officer,
Mayong, District - Morigaon, Assam.
7. The District Fishery Development Officer,
Morigaon, Assam.
8. M/s No. 129 Haria Dablong
Meen Samabai Samity Ltd.
Represented by its Secretary,
Village - Amkata,
P.O. - Khulagaon & P.S. - Jagiroad,
District - Morigaon, Assam.
..................Respondents.
Advocates :
Petitioner : Mr. S. Banik, Advocate.
Respondent nos. 1 - 7 : Mr. D.K. Sharma,
Additional Senior Government Advocate, Assam.
Respondent no. 8 : Mr. M.K. Choudhury, Senior Advocate.
: Mr. P. Bhardwaj, Advocate.
Date of Hearing and Judgment & Order : 21.06.2022
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
The petitioner has instituted this writ petition under Article 226 of the Constitution of India challenging an order dated 05.02.2021 passed under the hand of the Joint Secretary to the Government of Assam, Fishery Department [the respondent no. 2], whereby, the term of a fishery named 29 No. Nekera Page No.# 3/23 Nekeri Fishery, District - Morigaon ['the Fishery', for short] had been extended for a period of 2 [two] years, after expiry of the regular settlement period of 7 [seven] years on 25.03.2021, in favour of the then existing lessee viz. M/s No. 129 Haria Dablong Meen Samabai Samity Limited [hereinafter referred to as 'the respondent no. 8 Society', for convenience].
2. The background facts, in brief, are that pursuant to a tender process, the Fishery came to be settled with the respondent no. 8 Society vide an Order dated 18.02.2014, followed by another Order dated 14.03.2014, for a period of 7 [seven] years w.e.f. the date of handing over possession of the Fishery. The Fishery was settled with the respondent no. 8 Society at a settlement amount of Rs. 6,55,000/- per annum. The term of settlement of 7 [seven] years was due to expire on 25.03.2021.
2.1. The impugned order dated 05.02.2021 has made mention of a detailed report of the District Development Commissioner [DDC], Morigaon which was stated to be based on field enquiries conducted by the Circle Officer, Mayong and the District Fishery Development Officer [DFDO], Morigaon. The report of the DDC, Morigaon was forwarded by the Deputy Commissioner, Morigaon to the Fishery Department on 08.01.2021 in response to a directive contained in a letter of the Fishery Department dated 29.09.2020. The impugned order dated 05.02.2021 has made mention of four factors: - firstly, there is one agricultural bundh of about 200 metres in length, adjacent to the Fishery; secondly, there are 2 [two] sluice gates on either side of the Fishery, out of which one is broken and damaged. It has been observed that due to the damaged sluice gate, water as well as fish do not remain within the Fishery and due to closure of the Page No.# 4/23 operative sluice gates by the concerned department as per necessity, it used to prevent water or fish from entering into the Fishery; thirdly, the farmers in the neighbourhood of the Fishery draw water from the Fishery using pumps for watering paddy cultivation and as a result, there is decrease in the water level of the Fishery, which has affected in not raising the fish production up to the expected level; and fourthly, the fish production has been severely affected from March, 2020 onwards for more than 6 [six] months due to situation arising out of Covid-19 pandemic.
2.2. Based on the grounds cited in the representations, submitted by the respondent no. 8 Society on 21.09.2020 and 29.09.2020, seeking extension of the term of the Fishery and on the basis of the reports of the field enquiries, cited above, the Government in the Fishery Department, as reflected in the impugned order, had reached the view that extra-ordinary situation beyond the control of the lessee had warranted extension of lease in terms of Rule 8 of the Assam Fishery Rules, 1953, as amended ['the Assam Fishery Rules', for short] and it was on that premise, the Government had extended the term of the Fishery for a period of 2 [two] years on the expiry of the regular settlement period of 7 [seven] years. The respondent no. 8 Society was, thereby, directed to clear 50% of outstanding revenue before formal handing over of possession of the Fishery and the balance 50% in one installment by September, 2021. It is this order extending the period of settlement of the Fishery by 2 [two] years, which has been assailed by the petitioner, M/s 29 No. Nekera Lekera Min Samabay Samity Limited.
3. I have heard Mr. S. Banik, learned counsel for the petitioner; Mr. D.K. Page No.# 5/23 Sharma, learned Additional Senior Government Advocate, Assam for the respondent nos. 1-7; and Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. P. Bhardwaj, learned counsel for the respondent no. 8.
4. Mr. Banik, learned counsel for the petitioner has submitted that the petitioner society viz. 29 no. Nekera Lekera Min Samabay Samity Limited [hereinafter referred to as 'the petitioner Society', for easy reference] is a registered fishery co-operative society and the members of the petitioner Society comprise of 100% actual fishermen belonging to the Scheduled Caste [SC] community. It is projected that the occupation of all the members of the Society is fishing and the petitioner Society is in the immediate neighbourhood of the Fishery. The petitioner Society is desirous of getting settlement of the Fishery pursuant to a tender process to be initiated under the provisions of the Assam Fishery Rules. Having come to learn that the term of settlement of the Fishery has been extended for a period of 2 [two] more years by the impugned Order dated 05.02.2021, the petitioner Society has approached this Court challenging the impugned order of extension on the premise that such extension is illegal and arbitrary and the same was based on untenable and irrelevant considerations.
4.1. It is submitted by Mr. Banik, learned counsel for the petitioner that the process of extension was initiated on the basis of two representations submitted by the respondent no. 8 Society on 21.09.2020 and 29.09.2020, whereby, the respondent no. 8 Society had sought extension of the term of settlement for a further period of 3 [three] years. Mr. Banik has contended that in those representations, the respondent no. 8 Society had primarily cited 3 [three] Page No.# 6/23 grounds for seeking extension but the impugned order has made reflection of 4 [four] grounds. The first ground in the representations can be made relatable to the first two grounds cited in the impugned order. The third ground cited in the impugned order was not a ground on the basis of which the respondent no. 8 Society sought extension. In so far as the third ground in the representations and the fourth ground in the impugned Order are concerned, it is submitted by him that they are both relatable to Covid-19 pandemic. It is fairly submitted by him that the Covid-19 pandemic had affected all sections of people in the State and all kinds of economic activities including operation of the Fishery, were adversely affected from March, 2020 onwards. But on that factor also, a pragmatic approach ought to have been taken by the State respondents while considering the period of extension on the basis of actual loss. With regard to the second ground cited in the representations, he has submitted that as per the own version of the respondent no. 8 Society, the Phenomenon is a recurrent one and is a pre-existing issue.
4.2. Referring to Rule 8 [b] of the Assam Fishery Rules, he has submitted that the event[s] on which a lessee of a fishery could seek extension must be an event/events which had occurred during the period of settlement of the fishery concerned with him and it cannot be an event which was pre-existing when that particular fishery was settled with the lessee. Elaborating on the issue, he has submitted that the nature of cause should be either natural cause or any other unavoidable reason which must be beyond the control of the lessee and the cause or causes, as the case may be, must be of exceptionally special nature which must have originated after submission of the bids in the tender process for settlement of that fishery. While emphasizing that the decision of the State Page No.# 7/23 respondents to extend the term has to be based on official reports, he has submitted that there is also a set of guidelines, framed by the Government and contained in an execution instruction dated 29.10.2010. The extension, if any, is to be granted only to make good the loss the lessee has suffered during the period of settlement and the period for extension must co-relate with the quantum of loss. If an order of extension is not preceded by any assessment on the quantum of loss then the period of extension cannot be chosen by the State respondents at its whims.
4.3. To buttress his submissions, Mr. Banik has referred to the decisions in Chandrapur Anchalik Meen Samabai Samity Ltd. vs. State of Assam and others, reported in 1994 [1] GLR 105; Barium Chemicals Ltd. and another vs. Company Law Board and others, reported in AIR 1967 SC 295; Dibrugarh Fishery Co- operative Society Ltd. vs. State of Assam and others, reported in 2009 [3] GLR 335; and Pub Goalpara Fishery Co-operative Ltd. and another vs. State of Assam and others, reported in [2016] 2 GLR 446.
5. Mr. Sharma, learned State counsel who has produced relevant records relating to the impugned extension, has submitted that when the two representations, dated 21.09.2020 and dated 29.09.2020, were received at the end of the Fishery Department, the Department decided to cause an enquiry regarding the grounds cited in the two representations through the jurisdictional Deputy Commissioner, Morigaon and the jurisdictional Deputy Commissioner, Morigaon was requested by a letter dated 29.09.2020 [01.10.2020] to cause an enquiry by the Circle Officer, Mayong who was to be assisted by the DFDO, Morigaon. As per the instructions received from the Deputy Commissioner, Page No.# 8/23 Morigaon, the Circle Officer, Mayong and the DFDO, Morigaon made field inspections and submitted two separate reports. On receipt of the said two reports, the DDC, Morigaon had prepared a report and forwarded the same to the Deputy Commissioner, Morigaon who, in turn, forwarded the same to the Department for consideration. It was on the basis of those reports, the Department decided after reaching a satisfaction that due to extra-ordinary situations beyond the control of the lessee i.e. the respondent no. 8 Society, the situation warranted extension of the period of lease in terms of Rule 8 [b] of the Assam Fishery Rules and as such, the extension for the period of 2 [two] years is clearly justified.
6. Mr. Choudhury, learned Senior Counsel appearing for the respondent no. 8 Society has submitted that the representations were submitted by the respondent no. 8 Society prior to the expiry of 7 [seven] years period of settlement. He has stressed on the point that Rule 8 [b] of the Assam Fishery Rules is silent on the aspect as to whether the quantum of loss has to be specifically assessed for extending the term of an existing lease. The decision for extension of lease has to be based on official report and if the Government in the Fishery Department gets the required satisfaction on the basis of such official report the Government has the discretion to extend the period of lease provided the factors indicated in Rule 8 [b] of the Assam Fishery Rules are found to be present.
6.1. He has submitted that when a discretion is properly exercised by the authority who has been vested with such power, this Court in exercise of its power of judicial review under Article 226 of the Constitution of India has to Page No.# 9/23 limit itself to examine as to whether the authority had taken into account the relevant factors to reach the decision during the decision-making process and it is only the decision-making process which comes within the scope and ambit of judicial review and the decision reached in exercise of the discretionary power of the authority cannot be made subject to judicial review. To buttress his point on the limits of judicial review, Mr. Choudhury has referred to the decision of the Hon'ble Supreme Court of India in Union of India and another vs. G. Ganayutham, reported in [1997] 7 SCC 463.
6.2. It is his further contention that when there is express mention of certain things, then anything not mentioned therein is excluded and since the impugned order of extension has made mention of the factors taken into consideration by the authority vested with the discretion to extend the period of lease and when the authority has been vested with such power under the law, the Court in its discretionary writ jurisdiction is not to substitute the view taken by the authority. Emphasizing the said point, Mr. Choudhury has referred to the decision of this Court in Hemanbihari Singh vs. State of Manipur and others, reported in 2004 [1] GLT 1.
6.3. It is his further contention that no writ or order in the nature of mandamus is to be issued when there is no failure to perform a mandatory duty. A party approaching the Court complaining breach must show at first that there was a distinct demand from his end and that demand was met by refusal. Referring to the decision of the Hon'ble Supreme Court of India in Saraswati Industrial Syndicate Ltd. and others vs. Union of India, reported in [1974] 2 SCC 630, Mr. Choudhury has contended that the petitioner instead of making a Page No.# 10/23 complaint before the State respondents has directly approached this Court by instituting this writ petition and in that view of the matter, this writ petition is not liable to be entertained.
7. I have duly considered the submissions of the learned counsel for the parties and have also perused the materials brought on record by the parties through their pleadings. I have also gone through the records, produced by the learned State Counsel, relating to the extension of the term of settlement by the impugned order dated 05.02.2021.
8. At the forefront of the lis is the rule contained in Rule 8 [b] of the Assam Fishery Rules relating to extension of the term of the lease. Sub-clause [i] of Rule 8 [b] of the Assam Fishery Rules has contained the provisions for extension of the term of lease of registered fisheries. Rule 8 [b] [i] of the Assam Fishery Rules states that where the period of lease of registered fisheries being ordinarily not less than 3 [three] years is interfered with, due to any natural cause or for any unavoidable reasons beyond the control of lessee, the Government may extend 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 lessee to make good the loss.
9. A Division Bench of this Court in Writ Appeal no. 294/2013 [President/Secretary, Malegarh Gobindapur Fishery Co-operative Society Ltd. vs. Pub Goalpara Fishery Co-operative and others], decided on 04.08.2014, considered the scope of Rule 8 [b] of the Assam Fishery Rules which have been framed in exercise of the powers conferred by Section 155 and Section 156 of Page No.# 11/23 the Assam Land and Revenue Regulation, 1886 and Section 6 of the Indian Fisheries Act, 1897. The Division Bench has observed that under Rule 8 [b] [i], a statutory right is given to a settlement holder to seek extension of the lease period if the period of lease is ordinarily not less than 3 [three] years. The settling authority i.e. the Government in the Fishery Department can extend the period of lease for a reasonable period subject to certain conditions viz. [i] if the period of lease is interfered due to natural cause or for any other unavoidable reason beyond the control of the lessee; [ii] the lessee must suffer loss because of such interference; [iii] official report must support the claim of the lessee; and [iv] in exceptionally special cases extension can be granted to the lessee for a reasonable period to enable the lessee to make good the loss. While the lessee has a statutory right under Rule 8 [b] to claim extension, the Government on the other hand, has the corresponding legal obligation to consider such claim of the lessee within the parameters prescribed by Rule 8 [b] of the Assam Fishery Rules. Discretion is vested with the Government to grant extension or not to grant extension. It has been observed that such discretion has to be exercised in a reasonable manner and in accordance with law i.e. subject to fulfillment of the conditions. Therefore, it would be wholly inappropriate for the writ Court to prohibit or restrain a lessee from exercising its statutory right under Rule 8 [b] as well as to prevent the Government from exercising its discretionary power vested by law as to whether extension should be granted or not.
10. The matter of extension of the term of lease of registered fisheries had earlier come to be considered in Chandrapur Anchalik Meen Samabai Samity Ltd. [supra]. Considering Rule 8 [b] of the Assam Fishery Rules, it has been Page No.# 12/23 observed that the State Government has power to give extension only in exceptional cases when a lessee suffers certain loss due to any natural cause or for any other unavoidable reasons beyond his control. However, such extension can be granted only for a reasonable period, that too, on the basis of an official report as to the nature and cause of such loss sustained by the lessee. It has, therefore, been held that in order to exercise the power of extension of the term of lease, the State Government must first have an official report regarding the loss sustained by the lessee and only after ascertaining the extent of loss the Government may extend the period of lease for a reasonable period to enable such lessee to make good the loss. Therefore, the period of extension must have a close nexus with the loss sustained by the lessee and invariably, the quantum of loss is the important criterion for determining the period of extension. If the conditions referred to in Rule 8 [b] are not in existence, the authority has no power to grant extension. The action of the authority can be challenged before a court of law and the court may determine the legality and validity of the impugned decision on its own independent judgment. If the decision of the authority is contrary to what the court considers to be right, the action of the authority is liable to be upset. Where the action of the authority is based on finding of fact, the Court is required to examine only the reasonableness of the finding.
11. In Dibrugarh Fishery Co-operative Society Ltd. [supra], the petitioner society therein challenged an order of extension of lease of a fishery for a term of further 3 [three] years in the favour of the respondent society therein who was the sitting lessee with a term of 7 [seven] years, with an enhanced revenue of 10% over the annual revenue. The order of extension was based on a report Page No.# 13/23 submitted by the Deputy Commissioner, Dibrugarh wherein it was stated that the respondent society incurred losses but nothing was mentioned even about the approximate amount of loss incurred. The report mentioned that two parts of the fishery in question was settled by two other authorities by creating two other fisheries in favour of others. But the report was vague about the approximate area of parts of the two fisheries and the periods since when such events occurred, the approximate amount of loss incurred by the respondent society and the reasons for incurring such loss, etc. the Court after taking note of the decisions in Chandrapur Anchalik Meen Samabai Samity Ltd. [supra], Saraswati Industrial Syndicate Ltd. and others [supra], Hemanbihari Singh [supra] and G. Ganayutham [supra], has observed that while exercising the power of extension under Rule 8 [b] of the Assam Fishery Rules, the approximate amount of loss suffered by the sitting lessee is a relevant factor and that apart, the denial of the benefit of enjoyment of the fishery by other legally eligible societies is also to be looked into. In respect of the impugned order of extension, the Court has observed that the authority concerned did not even care to know what was the approximate amount of loss suffered by the respondent society and also that there is no cogent reason for refusing enjoyment by the fishery by the other legally eligible societies by resorting to unfair treatment to the other eligible societies and it has been further held that the authority concerned had acted ultra vires while issuing the extension order inasmuch as the authority concerned issued the impugned order in exercise of power without considering the grounds relevant to the object on the basis of which the authority had been so empowered. Observing so, the impugned order of extension was interfered with.
Page No.# 14/23
12. In the case of extension of lease, the same lease continues in force during the additional period. In other words, extension of lease means prolongation of the lease already existing between the lessor and the lessee. From the above discussion and in the light of the precedents cited above qua Rule 8 [b] [i] of the Assam Fishery Rules, it is clear that the event or the events for the occurrence of which a lessee seeks an extension, such event or events must occur during the period of the lease in question and such event or events cannot be of pre-existing nature which was in existence on or before the lease of the fishery was granted to the lessee concerned who seeks the extension. The expression, 'the period of lease of registered fisheries', appearing in Rule 8 [b][i] of the Assam Fishery Rules, is only relatable to the existing lease and by no means, it can be relatable to any previous lease for the same fishery. A tenderer participating in a tender process who has submitted his tender to be awarded with any nature of contract, lease, etc. which is in the nature of distribution of State largesses, is deemed to have satisfied himself by actual inspection of the site, locality and all other conditions he is liable to be encountered with during the execution of the contract, operation of the lease, etc. and is also deemed to have quoted the price by taking into account all such relevant factors. If the tender process is in respect of a settlement of a fishery for a particular term in years then such a tenderer is deemed to have satisfied himself about the actual position of the fishery for which he is going to submit his tender prior to submission of his bid and he is deemed to have quoted the price in the tender process after taking into account all the conditions and factors he is likely to encounter during the period of operation of the lease of the fishery.
Page No.# 15/23
13. When in the afore-stated context, the representations dated 21.09.2020 and 29.09.2020 are looked at, it is noticed that the respondent no. 8 Society in their said two representations itself had mentioned that the agricultural bundh and the two sluice gates were pre-existing. It was mentioned that the local cultivators/people in order to water their paddy fields, constructed the agricultural bundh with two sluice gates at earlier times and because of those, fish did not enter the Fishery during the rainy season and the respondent Society had to incur losses due to causes attributable to by the bundh and the two sluice gates. If the agricultural bundh and the two sluice gates were in existence from a time anterior to the date of the order of settlement passed in the year 2014 for which the Fishery was settled with the respondent Society then the same cannot be said to be a ground which would come under the scope and ambit under the Rule 8 [b] [i] of the Assam Fishery Rules. On a look at the two reports submitted by the Circle Officer and the DFDO, Morigaon, it is noticeable that the field inspections were carried out by the said two authorities on the same date i.e. on 21.11.2020 and two separate reports were submitted by the authorities. When the two reports are read in juxtaposition, the report of the Circle Officer indicated that the bundh was in existence for approximately 15-20 years. The report of the DFDO, Morigaon was also in similar lines with regard to the agricultural bundh. But in respect of the sluice gates, the findings of the two reports are contrary to each other. What is also noticeable is that the two reports were based on hearsay and not on the basis of the official records. The DDC, Morigaon who had not gone for field inspection had drawn conclusion in his reports from the other two reports.
14. The ground cited by the Circle Officer in his report was silent about Page No.# 16/23 drawing of water from the Fishery by the farmers in the neighbourhood of the Fishery for watering their paddy cultivation by using pumps. The DFDO in his report had mentioned about a number of farmers in the neighbourhood of the Fishery were drawing water from the Fishery by use of pumps to water their paddy cultivation resulting in decrease in the water level. On the other hand, the Circle Officer did not report about decrease in the water level in the Fishery. Rather, he found the water level to be adequate during his field inspection. In any view of the matter, the respondent Society in the representations dated 21.09.2020 and 29.09.2020 did not state the drawing of water by the cultivators in the neighbourhood of the Fishery by use of pumps as a factor for seeking extension of the term of the Fishery. The relevant Rule i.e. Rule 8 [b] [i] contemplates only natural cause or a cause beyond the control of the lessee as a ground to seek extension. If the cause is a man-made one then it must be one which should be beyond the control of the lessee and there has to be enough tangible materials to show that there were efforts and attempts to prevent such man-made cause and the cause must be one which can be perceived as a cause beyond the control of the lessee. The materials on record in the case do not go to suggest that there were attempts and efforts on the part of the lessee to prevent the cultivators in the neighbourhood of the Fishery from drawing water from the Fishery by the use of pumps. Viewed in that context, the ground cited in the impugned order for granting extension demonstratively is found to be an irrelevant one.
15. The respondent no. 8 Society in its representations mentioned that due to recurrent flood, occurring every year, there used to be erosion on the sides and with flood water breaching the boundaries of the Fishery every year, the Page No.# 17/23 resultant siltation process filled with mud, sand, etc. had accumulated layers after layers in the Fishery at many places and as a result, the depth of the Fishery got decreased resulting in decrease in fishes' habitation area with consequent loss to the lessee Society. The respondent no. 8 Society had itself represented that the flood is an annual phenomenon and the situation, what had been represented, had reached the described state due to repetition of the same phenomenon year after year. This ground is also a pre-existing ground and it was not a new phenomenon which had occurred for the first time during the period of the lease. As it was a pre-existing cause which used to recur every year, the respondent no. 8 Society is deemed to have taken such recurring event as a relevant factor in quoting its price for the settlement of the Fishery by taking into account all the pros and cons related with such an yearly phenomenon since firstly, the Fishery is a 60% category fishery; secondly, a 60% category fishery is required to be settled under the Assam Fishery Rules with a fishery co-operative society which is to be in the neighbourhood of such a fishery; and thirdly, the Fishery had been settled with the respondent no. 8 Society which is in the neighbourhood of the Fishery, it was not open for the respondent no. 8 Society to contend that it was not aware of the said pre- existing factor prior to seeking the settlement of the Fishery in its favour. The settling authority in the Fishery Department did not take the same, rightly so, as a relevant factor for while considering the matter of extension of the term of lease of the Fishery on the basis of the representations.
16. It cannot be denied that due to onset of Covid-19 pandemic all over the world and the State in particular, number of restrictions including lockdown were enforced from March, 2020 onwards. As a result of onset of Covid-19 pandemic Page No.# 18/23 and its continuance for a prolonged period, the economic and commercial activities on all fronts got adversely effected and also due to the Standard Operating Procedure [SOP] notified by the Government of India and the State Government from time to time, the economic and business activities had suffered during the period from March, 2020 onwards. It was an event which was not expected in 2014 and envisaged of earlier and the situation was of unprecedented nature. The onset and continuance of Covid-19 pandemic can unhesitantly be termed as a cause of exceptional nature.
17. In the light of the above discussion, this Court is of the considered view that out of the four grounds cited in the impugned order only the ground relating to Covid-19 pandemic can be said to be exceptionally special nature, which would warrant extension of the period of lease under Rule 8 [b] [i] of the Assam Fishery Rules. The Fishery was settled with the respondent no. 8 Society for a period of 7 [seven] years from the year 2014 and the 7 [seven] years period was due to expire on 25.03.2021. The only relevant ground which is of exceptional nature and beyond the control of the lessee was Covid-19 pandemic which had the potential to affect the operation of the Fishery for the period from March, 2020 onwards till the end of the lease period, that is, till 25.03.2021.
18. Rule 8 [b][i] of the Assam Fishery Rules has clearly stipulated that the extension of the term of the lease should be for a reasonable period to enable the lessee to make good the loss it had suffered during the period of the lease. Thus, as has been emphasized in the decisions in Chandrapur Anchalik Meen Samabai Samity Ltd. [supra] and Dibrugarh Fishery Co-operative Society Ltd. [supra], the authority vested with the discretion to consider extension of the Page No.# 19/23 lease has to first arrive at the approximate amount of loss suffered by the lessee and thereafter, to consider about the reasonable period by which the lease period is required to be extended so that the lessee recoup the loss. The decision in Pub Goalpara Fishery Co-operative Ltd. [supra] has referred to a set of instructions issued by the Government in the Fishery Department in a letter dated 29.11.2010. The decision has emphasized that the Government instructions contained in the letter dated 29.11.2010 make it explicitly clear that in all cases of proposal for extension of lease, profit and loss statement of the entire period of settlement under consideration, is required to be sent to the Government along with the extension proposal. The decision has further emphasized that the said Government instructions being an extant instruction, the jurisdictional Deputy Commissioner is required to furnish an extension proposal along with the profit and loss statement of the lessee. Such profit and loss statement is germane for the empowered authority to reach a decision regarding the quantum of loss and on the basis of such quantum of loss, to consider about the reasonable period which would be necessary for the lessee to make good the loss. When relevant records produced by the State counsel are perused, no profit and loss statement of the respondent no. 8 Society for the period of the lease i.e. from 2014 to 2021 was found to have been forwarded by the jurisdictional Deputy Commissioner to the empowered authority along with his extension proposal, save and except a favourable recommendation for extension of the period of lease on the basis of the reports, mentioned hereinabove.
19. As recorded in Pub Goalpara Fishery Co-operative Ltd. [supra], the Government instructions contained in the letter dated 29.11.2010 is a set of Page No.# 20/23 instructions issued to all Deputy Commissioners laying down the guidelines/instructions in all cases of proposals for extension of fishery. However, a copy of the said letter dated 29.11.2010 has not been placed before this Court by any of the parties nor the existence of the same has been denied. It is true that executive instructions do not have the force of law. The executive instructions can supplement a statute or can fill up gaps covering areas where the statute is silent, but they cannot run contrary to the statutory provisions or supercede their effect. Such executive instructions are normally intended to guide the authorities and to ensure that a fair procedure is adopted in the matter in respect of which such executive instructions are issued. Thus, such executive instructions have to be followed necessarily by the authorities in dealing with the subject-matter covered by the executive instructions. As per the said set of instructions, the necessity of sending the profit and loss statement of the entire period of settlement under consideration along with the extension proposal was indicated and informed to all Deputy Commissioners of respective districts. It is settled position of law that administrative authorities are bound by the norms, standards and procedures, laid down by it and disregard to such norms, standards and procedures invalidates its actions unless based on some valid principles which is neither irrational nor unreasonable. Non-adherence to the norms, standards and procedures laid down by the administrative authority for its own action would amount to arbitrariness on the touchstone of Article 14 of the Constitution of India.
20. The decision in G. Ganayutham [supra] has considered the aspect of reasonableness or unreasonableness of an administrative decision passed in exercise of a discretion vested by a statute. It has been held that to arrive at a Page No.# 21/23 decision on reasonableness or unreasonableness, the Court has to find out if the administrative authority has left out relevant factors or has taken into account irrelevant factors. The decision of the administrative authority vested with the discretionary power under a statute must have to be within the four corners of the law. The principles of judicial review of administrative action has been summarised under three heads, illegality, procedural impropriety and irrationality. The validity of any administrative decision taken in exercise of statutory power is to be tested on the basis of its reasonableness or its unreasonableness and as to whether the relevant factors are taken into account or as to whether to arrive at a decision the administrative authority has taken irrelevant factors in consideration.
21. In the light of the above discussion and the principles laid down by the decisions cited above, when the impugned order of extension dated 05.02.2021 is once again looked at, it is demonstratively apparent that the authority vested with the discretion under Rule 8 [b] [i] of the Assam Fishery Rules had taken some irrelevant factors into consideration and did not take some relevant factors into consideration during the decision making process. Even if non-assessment of the quantum of loss and the date of submission of the two representations [21.09.2020 and 29.09.2020] are ignored for the time being, then the period during which the lessee appeared to have suffered the alleged loss was only the period from March, 2020 till the last date of the lease, that is, 25.03.2021. If that period of about one year is assumed to be a period of total loss, which was never the case of the respondent no. 8 Society, then also the period of extension can be made for a period of about one year by all stretch. Thus, leaving out the three irrelevant factors which were taken into consideration by Page No.# 22/23 the authority and taking into consideration the sole relevant factor [Covid-19 pandemic], this Court is of the unhesitant view that the decision to extend the term of the lease for 2 [two] years has suffered from unreasonableness and arbitrariness and the same also amounted to denial of the benefit of enjoyment of the Fishery by the other legally eligible societies including the petitioner Society, in the neighbourhood. Since the impugned order of extension is not arrived at on the basis of relevant factors, the most pertinent amongst it is the quantum of loss vis-à-vis the reasonable period, the same is liable to be interfered with. In such view of the matter, the impugned order dated 05.02.2021 is set aside and quashed.
22. As a result of setting aside of the impugned order of extension dated 05.02.2021, the Fishery will become Khas and the settling authority is at liberty to proceed with the settlement of the Fishery in accordance with the provisions of the Assam Fishery Rules, more particularly, Rule 12 thereof since the Fishery is a 60% category Fishery. Considering the fact that the purpose of settlement of the Fishery is primarily two-fold, that is, earning of revenue and to provide source of earning to the actual fishermen in the neighbourhood of the Fishery, the necessary process for settlement of Fishery shall be initiated within a period of 1 [one] month from today with the publication of the tender notice and it is expected that the process of settlement will be completed as expeditiously as possible, preferably within a period of 1 [one] month from the issuance of the tender notice. The settling authority shall decide about the matter of operating the Fishery in the best possible manner during the intervening period.
23. With the observations made and directions given above, the writ petition Page No.# 23/23 is allowed to the extent indicated. There shall however be no order as to cost.
JUDGE Comparing Assistant