Full Judgment Text
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PETITIONER:
M/S BAGHOPURI M.M.SAMBAL SAMITI
Vs.
RESPONDENT:
STATE OF ASSAM & ORS.
DATE OF JUDGMENT: 30/03/1999
BENCH:
S. RAJENDRA BABU, S.N. PHUKAN.
JUDGMENT:
RAJENDRA BABU. J. :
These appeals are filed against an order made by the
Government of Assam by which certain fishery rights were
settled In favour of the appellant by an order dated April
20, 1994. The said order was challenged in writ petitions.
The learned Single Judge, who heard the matter, set aside
the order of the Government and remanded the matter to the
Government for settlement applying the correct principles of
law. Again on April 5, 1995, the appellant society applied
for settlement of fishery. The Deputy Commissioner, Darrang
cancelled the settlement of fishery made with the appellant
society and thereafter a writ petition was presented in the
High Court of Gauhati challenging the settlement of fishery
in favour of the appellant. The contention put forth before
the High Court was that the appellant did not fulfil the
requirements of direct settlement under the proviso to Rule
12 of the Fishery Rules inasmuch as the said society was
formed with the members belonging to Maimal Community who
are not entitled to direct settlement. This community had
been recognised and notified for Cachar District only and
cannot be equated with the Scheduled Castes community for
the purpose of getting settlement of the fishery under the
proviso to Rule 12 in other parts of the State of Assam.
The learned Single judge disposed of the writ petitions and
as regards the applicability of the proviso to Rule 12 to
the Maimal Community observed that the appellant society was
situated in Darrang district and was formed with persons
belonging to Maimal Community and the members of Maimal
Community in the Cacher District are backward and,
therefore, they need protection and economic help. The aim
of proviso to Rule 12 is to give the benefit of a fishery to
a cooperative society formed with 100% actual fishermen of
the fishing population belonging to Scheduled Caste or
Maimal Community. Backwardness and economic deprivation
were the main criteria for giving the benefit and not the
place of residence and though the members of the appellant
belonged to the Maimal Community of Cachar District new they
were permanently residing in Darrang District and they could
not be deprived of getting tine benefit of proviso to Rule
12. However, he directed the Government to consider and to
give settlement of the fishery in question, after
considering the following questions:
(i) Whether the claimant-fishery cooperative society is
formed with 100% actual fishermen of the fishing population
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belonging to Scheduled Caste or Maimal Community of Cachar
District;
(ii) Whether the members of the said society live in the
neighbourhood of the fishery in question; and
(iii) Whether the said society fulfils the other terms and
conditions necessary for giving settlement.
Appeals were carried against the said order. The
Division Bench of the High Court which considered the matter
took the view that the Mainmal Community of Cachar District
had been put at oar with other Scheduled Caste of the State
as notified by the President by public notification under
Article 341 of the Constitution. The list of Scheduled
Castes as notified by Presidential order can neither be
added nor substracted by any other authority except
Parliament.
The precise question that arose for consideration
was whether the Maimal Community who settled outside the
district of Cachar was entitled to any preferential
treatment or protection. In other words, whether the
benefit under proviso to Rule 12 is restricted to
geographical limit of the Cachar District, or it can be
availed of even out of the Cachar District. On this aspect
of the matter, the Division Bench held that while there
could be no inhibition for a member of SC/ST migrating but a
member of Scheduled Caste or Tribe when migrates does not
and cannot carry any right or privileges attributed to him
or granted to him in the original State and on parity of
reasoning extended the same to the Maimal Community of the
Cachar District. Even if the community is treated as
backward, as has been observed by the learned Single Judge,
and, therefore, in need of protection and economic help the
members thereof cannot claim or carry the privileges outside
the Cachar District and on that basis allowed the appeals
filed by the respondents and dismissed the appeal filed by
the appellant and took the view that the appellant was not
eligible to claim fishery rights. It is against this part
of the order that these appeals have been filed.
In order to correctly appreciate the issue involved
in this case, we may set out the relevant provisions of the
Rules. Rules 8, 12 and 13 read as follows :
Rule 8 :
"(a) Settling Authority. The Deputy
Commissioner or the Additional Deputy
Commissioner in case of Sadar Division and
Sub-Divisional Officer in case of other
Sub-divisions shall be the authorities for
settlement of all registered fisheries
under tender system of sale in their
respective jurisdiction.
(b) Extension of the term of lease, (i)
Where the period of lease of registered
fisheries being ordinarily not less than
three years is interfered with, due to any
natural cause or for any unavoidable
reasons beyond the control of the lessees,
Government may extend the period of such
lease supported by official reports as to
the nature of cause in exceptionally
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special cases for a reasonable period so
as to enable such lessees to make good the
loss.
(ii) The State Government may also, on the
recommendation of the Director of
Fisheries extend the period of lease of a
fishery with an intending pisciculturist
who should invariably be the sitting
lessee and who agrees to accept such an
extension at a revenue and for such other
additional terms and conditions as may be
specified by Government :
(iii) Provided that one of the conditions
of extension of lease against
piscicultural plan shall invariably be the
Implementation of approved scheme or
schemes of development and improvement of
such a fishery at the lessee’s own cost
within a target period to be fixed by
Government.
The order of extension of lease on the
aforesaid grounds, passed by the State
Government shall be final and no appeal
shall lie against such orders of
extension.
(c)..,..,
(d)......
(e) Re-sale of fisheries. When for
default kist money or for violation of any
of the conditions of the fishery lease
including any of the provisions of these
Rules by a lessee the fishery shall be put
to re-sale under tender system at the risk
of original lessee. Notice of re-sale
shall be given as in the case of the
original sale with the additional proviso
that the re-sale shall be at the risk of
and on account of the original lessee.
Provided that the question of
such re-sale shall not be applicable where
State Government permits extension of time
for payment of kist money."
Rule 12
"Except those referred to in sub-rule No.
8(b) above, all registered fisheries shall
be settled under tender system of sale in
place of sale by auction.
Provided that the State
Government may settle any registered
fishery, otherwise than under tender
system, with a fishery cooperative society
frame with 100 per cent actual fishermen
of the fishing population in the
neighbourhood of the fishery concerned and
belonging to Scheduled Caste of the State
or Maimal Community of the Cachar District
at a revenue calculated and for a period
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decided by the State Government from time
to time."
Rule 13
(a) "With prior approval of the State
Government not more than 60 per cent of
the fisheries In a sub-division available
for settlement in a year shall be selected
for sale under tender system only with the
Cooperative Fishery Societies formed with
100 per cent share holders from members of
actual fishermen belonging to the
Scheduled Caste of the State and/or Maimal
Community of the District of Cachar and
registered under the Assam Cooperative
Societies Act, 1949. Settlement of all
such fisheries tenders of which have been
accepted under R.5 shall be with the
highest tender.
(b) The remaining fisheries in the
sub-division available in that year under
tender system of sale, shall remain open
for settlement to ail communities
including Co-operative Societies as
referred to in Sub-R.(a) above.
(c) Cooperative Fishery Society by members
of actual fishermen belonging to the
Scheduled Castes/ Maimal
Community/Scheduled Tribes/other Backward
Classes and registered under the Assam
Cooperative Societies Act, 1949, shall be
given option to accept settlement of
fisheries of the category as mentioned in
sub-R.(b) above at the highest tender;
provided that their tender is within 71/2
per cent of the highest tender.
(d) When the tenders for fisheries failing
within the category referred to Sub-R.(b)
above are below 7-1/2 per cent of the
highest tender (i) Co-operative Societies
as stated in sub-R.(c) above, (ii)
individual members of actual fishermen
belonging to the Scheduled Castes/ and
other Backward Classes who may offer
tenders not less than 60 per cent of the
highest tender, may be given option to
take settlement of the fishery at the
highest bid, in the order of preference
stated above subject suitability of the
tenderer,
(e) When a fishery referred in sub-R.(b)
above fetching a tender not exceeding
Rs.50,000 per annum is settled with any
individual member from actual fishermen
belonging to the Scheduled Castes,
Scheduled Tribes/Maimal Community or other
Backward Classes the tenderer shall be
entitled to a rebate of 7-1/2 per cent as
concession. But when a fishery fetching a
tender not exceeding Rs.one lakh (Rupees
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one lakh) per annum is settled with any
Cooperative Fishery Society formed by
members from communities as stated above,
the tenderer society shall get a rebate of
ten per cent as concession :
Provided that 100 per cent rebate
as aforesaid shall not be available to
Cooperative Fishery Society formed with
100 per cent shareholders from actual
fishermen belonging to the Scheduled
Castes of the State and the Maimal
Community of the District of Cachar if
they accept settlement of fisheries as
stated in Sub-R.(a)) above;
Provided further that such shall
not be admissible in case any individual
or Cooperative Fishery Society of any
protected community offers the highest
tender.
(f) Any tenderer claiming the concession
provided In this rule shall indicate the
same in his tender."
The validity of the said rules
had been challenged in the Gauhati High
Court in Arabinda Das & etc, vs. State of
Assam & Ors., AIR 1981 Gauhati 18. In
that case, the background in which the
said Rules were framed was considered and
it was noticed that the Rules can be
framed in terms of the Assam Land &
Revenue Regulations and the successive
amendments of the Rules made from time to
time indicated the anxiety of the
Government to give a better deal to
deserving persons, namely, the cooperative
societies formed by actual fishermen by
settling mole and more fisheries with
them, the emphasis being that the
Government was more concerned with
providing work to the actual fishermen to
improve their lot than deriving revenue to
the exchequer. After analysing the
various rules it was noticed as follows:
"On a careful perusal of the proviso to
Rule 12 we find that the exercise of the
power under it is not arbitrary. There
are prerequisites which must be satisfied
before the power of direct settlement can
be exercised by the State Government under
the proviso. These prerequisites are
that:
(a) a settlement of a registered fishery
can only be made with a fishery
cooperative;
(b) formed with hundred per cent actual
fishermen of fishing population;
(c) in the neighbourhood of the fishery
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concerned;
(d) belonging to the Scheduled Castes of
the State or Maimal Community of the
Cachar District; and
(e) at a revenue calculated and for a
period decided by the State Government
from time to time."
If we bear these principles in mind, the
interpretation of proviso to Rule 12
becomes easy. It is unnecessary to
examine the question whether the
appellants belong to any backward class or
Scheduled Caste when specifically the rule
stated that persons belonging to Maimal
Community of the Cachar District become
eligible to apply for settlement of the
registered fishery. Now the
interpretation of the said provision turns
upon the exact language used by the
Government. The fact that the appellant
society consists of members belonging to
Maimal Community of the Cachar District is
not in dispute. Their case is that their
members belong to the Maimal Maimal
Community of the Cachar District and they
fall into a class which is described in
the relevant rules and thus become
entitled to seek the registered fishery.
The learned Single Judge did not indulge
in any exercise in semantics as to the
expression "Maimal Community of the Cachar
District" and as to whether the operation
of the said rule is confined only to
Cachar District or outside but on the
basis that the Maimal Community of the
Cachar District were members of the
society and the object of the rule being
to help the backward classes they were
entitled to the same even though such
persons may be residing outside the
district. The Division Bench of the High
Court: laid emphasis on the expression
"of the Cachar District" and, therefore,
took the view that they must belong to the
Maimal Community and must reside within
the district to become entitled to the
benefit of the rule. Now we may advert to
the policy adopted by the Government of
Assam in the matter of backward classes in
the communication No. TAD/DC/268/75/37
dated November 27, 1975. We may notice
that there are certain communities which
are recognised only in a particular area
geographically. In respect of others, all
that is stated is "Kumar; Rudra Paul of
Cachar" while in case of Rajbonshi or Koch
(Koch of Goalpara and Garo Hills only).
Specific mention is made as confined to a
particular area. When area of operation
of a notification Is not confined to any
particular geographical region the areas
referring to persons belonging to a
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community of a particular district would
only be the words of description and in
such cases we will have to take the term
"of" as denoting origin or descent of the
persons belonging to a particular
community of an area. Ultimately it means
that they hail from a particular area and
recognises them belonging to that
particular district and no more.
Therefore, the view taken by the teamed
Single Judge of the High Court appears to
us to be more reasonable and appropriate
than the view taken by the Division Bench
of the High Court. During pendency of the
matter before the competent authority the
benefit of interim order granted by this
Court shall continue until disposal of the
matter.
On this reasoning, we allow the
appeals filed by the appellant and set
aside the order made by the Division Bench
and restore that of the learned Single
Judge. The appeals are allowed
accordingly. Considering the nature and
circumstances of the case, there shall be
no order as to costs.