Gauhati High Court
Review.Pet./10/2021 on 6 December, 2021 GAHC010017692021
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
REVIEW PETITION NO.10 OF 2021
Katahguri Meen Samabay Samity
Limited, a Co-operative Society
registered under Societies Registration
Act, 1949, represented by its
President, Kandulal Mandal (aged
about 59 years), son of Bhim Chandra
Mandal, resident of Village No.1
Murkata, PO: Rajamayong, PS:
Mayong, District: Morigaon, Assam.
……..Petitioner
-Versus-
1. The State of Assam, represented by
the Commissioner & Secretary to the
Government of Assam, Fishery
Department, Dispur, Guwahati –
781006.
2. The Joint Secretary to the
Government of Assam, Fishery
Department, Dispur, Guwahati –
781006.
3. The Deputy Commissioner,
Morigaon, PO, PS & District: Morigaon,
Assam.
4. M/s Dhipujijan/Garanga/Garchak
Malia Min Palan Co-operative Society
Limited, PO: Barpak, PS: Mayang,
District: Morigaon, Assam.
5. No.11 Part-V Kalong Nadi Anchalik
Meen Samabai Samity Limited, a
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registered Fishery Co-operative Society
Niz Gobardhan, PO: Chandrarpur,
District: Kamrup (M), Assam.
……..Respondents
-BEFORE-
HON’BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON’BLE MR. JUSTICE SOUMITRA SAIKIA
For Review Petitioners : Mr. KK Mahanta, Senior Advocate.
Mr. KM Mahanta, Advocate.
For Respondent Nos.1 to 3 : Mrs. RB Bora,
Jr. Government Advocate, Assam.
For the Respondent No.4 : Mr. S. Borthakur, Advocate.
For the Respondent No.5 : Mr. J.I. Borbhuiya, Advocate.
Date of Judgement & Order : 6th December, 2021.
JUDGMENT & ORDER (ORAL)
(Sudhanshu Dhulia, CJ)
Heard Mr. K.K. Mahanta, learned senior counsel
for the review petitioner. Also heard Mrs. R.B. Bora,
learned Junior Government Advocate, Assam, appearing for
the respondent Nos.1, 2 & 3; Mr. S. Borthakur, learned
counsel, appearing for the respondent No.4 and Mr. J.I.
Borbhuiya, learned counsel, appearing for the respondent
No.5.
2. This review petition has been filed by the
petitioner/writ appellant with a prayer that the order dated
-3-
05.01.2021 passed by the Division Bench of this Court in
Writ Appeal No.142/2020 should be reviewed.
3. The grounds urged for review of the said order by
Mr. K.K. Mahanta, learned senior counsel for the review
petitioner are precisely that the order dated 05.01.2021
clearly reflects that the order has been passed on the basis
of an understanding/compromise between the parties and
hence the said order was passed with certain directions,
which read as under:-
“Today, when the matter was heard, all parties
are agreed that the writ appeal can be disposed of by
issuing necessary directions which would be
beneficial to all parties at large and would also
subserve the principles governing settlement of State
largesse.
On the above and without entering into the
merits of the case in greater details, the writ appeal
stands disposed of with the following directions :
(1) As the appellant/writ petitioner have shown that it
has deposited kist money until 17.07.2021, which
has also been duly accepted by the settlement
authority, steps now be taken by the Deputy
Commissioner, Morigaon to verify, calculate and
refund such amount to the appellant proportionate to
the period covering 18.08.2020 to 17.07.2021, within
a period of 3(three) weeks from today.
(2) Steps be initiated by the Deputy Commissioner,
Morigaon for issuing tender for settlement of
Dhipujijan/Garanga/Garchak, Malia Group Fishery
in terms of the statutory provisions under the Assam
Fishery Rules, 1953, within a period of 30(thirty)
days from the date of receipt of this order and
conclude settlement of the fishery to the valid
successful bidder within 15(fifteen) days next.
(3) The Deputy Commissioner, Morigaon, to allow the
respondent no.4 to operate the fishery on daily basis
until final settlement of the fishery in question is
made through tender process, not exceeding the
period indicated in (2) above.”
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4. Now the grounds urged in the present review
petition is that in the said order, the then learned counsel
had consented to compromise without seeking instructions
from the review petitioner and in fact the effective order
which had been passed by the Division Bench goes against
the review petitioner inasmuch as according to the review
petitioner, since the seven years period of settlement did
not operate smoothly and was interrupted by interim
orders in the writ petition and when finally they had
succeeded in the writ appeal, the concerned Deputy
Commissioner had clarified that what would be counted for
the seven years period of settlement will be the regular
period of settlement and not the day-to-day arrangement.
In other words, since the day-to-day arrangement itself
was for three years, the review petitioner would liable to
get a further period of three years from 2019 onwards and,
therefore, it should have continued till December, 2022.
Hence consent given by its counsel to an arrangement
which effectively terminated the rights of the review
petitioner in 2019 itself, was clearly prejudicial to the
interest of the review petitioner and, therefore, it is liable
to be heard again. In order to show their bonafide, the
review petitioner has also drawn the attention of this Court
to a complaint filed by them against their counsel before
Bar Council of Assam, Nagaland, Mizoram and Arunachal
Pradesh, which has been annexed along with the review
petition.
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5. Mr. S. Borthakur, learned counsel appearing for
the respondent No.4 has argued that there is no error
apparent on the face of the record and under the limited
jurisdiction of this Court, the review petitioner is not liable
to be heard.
6. All the same, after considering the rival
submissions of the parties and in order to bring an end to
this controversy, we must hear the review petitioner afresh
on merits. The order dated 05.01.2021 of the Division
Bench is hereby recalled.
7. In order to get better perspective in the matter,
brief facts of the case are stated herein under.
Fishing rights of the fishery, namely, Dhipujijan/
Garanga/Garchak/Malia Group Fishery, were settled in
favour of the review petitioner for a period of seven years
with effect from 14.12.2012 by way of a settlement. In the
usual course, this seven years period would have come to
an end on 13.12.2019. All the same, the said settlement
given in favour of the review petitioner was challenged in
two separate writ petitions by two bidders to the
settlement being WP(C) No.138/2013 and WP(C)
No.328/2013, one was the highest bidder and the second
was the ninth highest bidder. The writ petitions of the
bidders did find favour of the learned Single Judge and the
settlement made in favour of the review petitioner was
quashed and set aside vide order dated 27.11.2013.
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The said order was challenged before the Division
Bench in a writ appeal which was finally disposed of by the
Division Bench on 14.06.2016 by allowing the writ appeal
of the review petitioner and setting aside the order dated
27.11.2013 passed by the learned Single Judge. The
undisputed fact is that the review petitioner continued to
enjoy all fishery rights during its period and remained in
possession of the fisheries by the interim orders of the
Court, although this arrangement was called by the Fishery
Department as “Day-to-Day Arrangement”.
8. Consequent to the order of the Division Bench
dated 14.06.2016, the Joint Secretary to the Government
of Assam, Fishery Department passed an order on
30.06.2016 directing the concerned Deputy Commissioner,
Morigaon District as follows:-
“…….. I am directed to request you kindly to
comply with the Hon’ble High Court’s order dated
14/06/2016, formally handing over the
possession of Fishery in question to the 3 rd
highest bidder i.e. Katahguri Min SS Ltd. as per
settlement order Dtd. 14/12/2012 considering
the Govt. revenue. While giving possession of the
Fishery, you are requested to include the regular
settlement period and exclude the daily basis
settlement period from settlement period as
enjoyed by the lessee society.”
9. The review petitioner on the strength of this
direction continued to work. Meanwhile, when in the year
2019 proceedings were to be initiated for settling the rights
afresh (as the initial seven years period was coming to an
end in December, 2019), a clarification was sought by the
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concerned Deputy Commissioner vide his letter dated
29.02.2020 that while giving formal possession of the
fishery to the review petitioner, directions were given by
the Government to exclude the daily basis settlement
period from settlement period and, therefore, what needs
to be done? On this request, the Joint Secretary to the
Government of Assam, Fishery Department then passed a
detailed order on 04.08.2020 stating that the daily basis
settlement is not liable to be excluded and shall be
included in the seven years period. Relevant portion of the
order dated 04.08.2020 reads as under:-
“It is submitted that the existing lessee has
continuously run the fishery including the intervening
period under same rate on daily basis when the
Hon’ble High Court set aside the Govt. order of
regular settlement vide No.FISH 193/2010/Pt/294
dated 14.12.2012.
Thus Govt is of the view that the subsequent
Govt instruction vide letter No.FISH 193/2010/Pt-
II/351 dated 30.6.2016 to exclude the period of
temporary settlement in term Govt. Order vide
No.FISH 193/2010/ Pt-I/373 dated 17.12.2013 was
a pre-emptive move at that stage for reasons best
known to the concerned official of the Department of
that period. In this connection, Govt took into
consideration earlier decision on similarly situated
matter.
Thus, Govt is of the firm view that the lessee
society has over enjoyed the fishery beyond 7 years
tenure on the basis of an administrative order issued
in 2016 without having legal sanctity.
It is seen that another case has been filed by
M/S No.11 Part V Kalong Nadi Anchalik MSS Ltd vide
WP(C) No.6825/2017 alleging that the lessee society
has sub let the fishery to 2(Two) private individuals
who were made Respondent in the above case. The
Hon’ble High Court vide order dated 18.11.2019
directed DC, Morigaon to dispose of the
representation with a speaking order with proper
opportunity to both parties for representation has
been disposed of by DC, Morigaon with a speaking
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order rejecting the allegation of the writ petitioner of
subletting the fishery by existing lessee vide No.MRF
7/2010/Pt/241 dated 30.12.2019.
Thus after consideration of all materials in hand,
Govt is pleased to discontinue settlement of
Dhipujijan/ Garanga/Garchak, Malia Group Fishery
in Morigaon district vide order No.FISH
193/2010/Pt/294 dated 14.12.2012 R/W
administrative instructing vide No.FISH
193/2010/PT-II/351 dated 30.6.2016 in favour of
M/s Kotahguri MSS Ltd with immediate effect as the
settlement period of 7 years including the daily basis
settlement which was without any break is already
over.”
10. Now fishery rights were to be given afresh and
the possession was to be taken away from the review
petitioner as the seven years period was coming to an end.
The review petitioner challenged the order dated
04.08.2020 before the learned Single Judge of this Court in
a writ petition being WP(C) No.3164/2020. The writ
petition of the review petitioner, however, did not find any
favour and was dismissed vide order dated 23.09.2020.
The findings given by the learned Single Judge in
Paragraphs 6, 7, 8 & 9 are as follows:-
“6) It is seen that if 7 years settlement time is
computed from 14.12.2012, the 7(seven) year
settlement period would have expired on 14.12.2019.
There is no dispute on this at the Bar. It is also not in
dispute that during the said period between
14.12.2012 to 14.12.2019, the petitioner was never
dispossessed from the said fishery. Therefore, in
other words, the petitioner remained in unhindered
physical possession of the said fishery for the entire
tenure of 7(seven) years, save and except alteration of
the nomenclature of his settlement from a “regular
settlement” to a “daily basis settlement”, in the midst
of the regular settlement period, but without change in
the revenue payable by the petitioner to the State, in
other words, without the petitioner enriching the State
in any manner whatsoever. This position is also
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undisputed at the Bar. Rather, the petitioner had
been permitted to over-enjoy the said fishery from
14.12.2019 till the petitioner was ousted on
04.08.2020.
7) It can be appreciated that if during the
continuance of the lease, the lessee is unable to enjoy
the fishery for any lawful reason, in a given case, it
might be permissible for the competent authority to
extend the period of lease so as to compensate the
lessee for the lost period. However, in this case in
hand, the petitioner has not lost any period during his
settlement period w.e.f. 14.12.2012 to 14.12.2019.
The learned counsel for the petitioner has not been
able to show any provisions contained in the Assam
Fishery Rules, 1953 which permitted the sitting
lessee the benefit of extension of fishery by excluding
the “daily basis settlement period” during
continuance of the period of such lease, but during
which time he was otherwise in possession of such
fishery. Moreover, on a perusal of the common
judgment and order dated 14.06.2016 in W.A. Nos.
413/2013 and 415/2013, there appears to be no
direction that the daily basis settlement period should
be excluded from the regular settlement period.
8) Therefore, the Court is of the considered opinion
that as the direction contained in the order no. FISH
193/2010/Pt-II/351 dated 30.06.2016, to the Deputy
Commissioner, Morigaon to exclude the daily basis
settlement period from regular settlement period is not
based on any legal provisions contained in the Assam
Fishery Rules, 1953. Having arrived at the said
conclusion, it is consequentially held that the
settlement period of the said fishery with the
petitioner was for a period from 14.12.2012 and had
come to an end on 14.12.2019. Therefore, as a
natural fall-out, it was not necessary for the State to
give an opportunity of hearing to the petitioner before
discontinuing the lease of the said fishery as no
lawful lease exists after expiry of 14.12.2019. Hence,
in the further considered opinion of the Court, the
petitioner has over- enjoyed the said fishery upto
04.08.2020. Therefore, no interference is called for in
respect of that part of the impugned order no. FISH
193/2010/PtI/522 dated 04.08.2020, by which
settlement of 25 No. Dhepujijan, 28 No. Garonga, 103
No. Garsag, and 104 No. Malia group fishery with the
petitioner was discontinued. Insofar as the projection
made by the petitioner is concern that they have paid
revenue to the Govt. up to 17.07.2021. However, as
the State had revoked the lease by virtue of order
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dated 04.08.2020, the petitioner may be well advised
regarding what has to be done with the advance
revenue so paid by the petitioner.
9) Before parting with the records, it is deemed
appropriate to mention herein that it is seen that the
petitioner has assailed the impugned order dated
04.08.2020. However, the said order consists of two
distinct parts, first part being the discontinuance of
settlement of the said fishery with the petitioner
which has been assailed, and the second part
consists of settlement of the said fishery with
respondent no.4 on daily basis, which appears to be
not under challenge. The lack of challenge is inferred
because there is no corresponding statement in the
writ petition and even in the prayers made in the writ
petition, no mention has been made as regards
settlement of the said fishery on “daily basis” to the
respondent no.4. There is also no prayer for a
direction to the respondent nos.1 to 3 to go for
expeditious re-tendering. Moreover, in the writ petition
filed by the petitioner, it is not Page No.# 7/7
desirable that any directions be issued to the State
respondent nos. 1, 2 and 3 at the instance of oral
prayer made by the learned counsel for the
respondent no.5. Therefore the ratio of the cases cited
by the learned counsel for respondent no.5 does not
come to the aid of the respondent no.5, for which the
said cases are not discussed herein to avoid
burdening this order with volume.”
11. Aggrieved by the decision of the learned Single
Judge, the review petitioner had filed a writ appeal being
Writ Appeal No.142/2020 before this Court on which the
aforesaid order dated 05.01.2021 was passed, which we
have already reproduced earlier in this order.
12. We have already indicated above that we have
reopened the entire issue and are presently hearing the
writ appeal on its merit. The grounds urged by Mr. K.K.
Mahanta, learned senior counsel for the review petitioner/
appellant are that the review petitioner/appellant was
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given settlement of a fishery for a period of seven years,
which was to run from 14.12.2012 to 13.12.2019.
Between this period, for a period of three years the review
petitioner was running the settlement but on daily
arrangement basis. It was not a regular arrangement. All
the same, we have already seen the findings of the learned
Single Judge on this aspect, i.e. except for the
nomenclature between a regular arrangement and a daily
basis arrangement there is absolutely no difference as to
how the present fishery was being run. The review
petitioner continued to catch the same amount of fish
which was being done from the fishery on regular basis. At
least nothing has been stated before this Court in any
manner as to on this count whether there was any
difference. Definitely it continued to pay the same amount
of rent or fee to the Fishery Department and the review
petitioner has not been able to show as to how it was
prejudiced to run the fishery on a daily settlement basis,
instead of regular basis. In fact the admitted position is
that if the seven years period would have been counted as
a continuity then it should have ended on 13.12.2019
whereas the fact is that the review petitioner continued to
enjoy the benefits of the fisheries till 04.08.2020.
13. Another point raised by Mr. K.K. Mahanta, learned
senior counsel for the review petitioner is that once the
Joint Secretary has explained the position of the State
Government that only the regular period of settlement will
be counted for the seven years and the three years period
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would be excluded and this was done by his order dated
30.06.2016, the subsequent clarification made on
04.08.2020 by the Joint Secretary amounts to taking away
the valuable rights of the review petitioner as it deprives
the review petitioner of three years of settlement and since
the admitted position is that no opportunity of hearing was
given to the review petitioner while doing so and the order
dated 04.08.2020 is in violation of the principles of natural
justice and fairplay, an interference was called for by the
learned Single Judge.
14. The authority which has passed the order dated
04.08.2020 was authorised to pass such an order. On this,
there is no doubt. To be fair to the review petitioner, it
must also be placed on record that while doing so, under
the normal circumstances a notice or an opportunity of
hearing should have been given to the review petitioner. It
has not been done. All the same, no benefit of this can be
given to the review petitioner for the simple reason that we
are in complete agreement with the findings of the learned
Single Judge that the seven year period will be counted as
a continuity from 14.12.2012 and would end on
13.12.2019. Therefore, in effect no prejudice has been
caused to the review petitioner even when no opportunity
of hearing was given by the Joint Secretary before passing
the order dated 04.08.2020. We say this also being aware
of the fact that the review petitioner has already over
stayed the period of settlement by about eight months as
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its period of settlement would have come to an end on
13.12.2019 but it continued till 04.08.2020.
15. Under these circumstances, we do not find any
merit in the writ appeal, as there is no anomaly in the
order of the learned Single Judge dated 23.09.2020.
Consequently, we dismiss the present review petition.
JUDGE CHIEF JUSTICE
Comparing Assistant
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