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Judgment
Heard Mr. R.M. Deka, learned counsel for the petitioner in both the writ petitions. I have also heard Mr. D. Doley, learned Government Advocate,
Assam, appearing for the official respondents. Both these writ petitions arising out of common facts, raises identical issues for consideration of this
Court and, therefore, are being disposed of by this common order.
The writ petitioner was the sitting lessee in respect of 40 No. Sela Charikaria Fishery, which was settled with it by the order dated 06/03/2009 for a
term of 7 (seven) years on condition of payment of a sum of Rs..3,30,000/- per year. While operating the fishery, certain circumstances such as
swelling of the soil in the river bed, encroachment etc. had allegedly taken place which had diminished the scope of fishing activities. According to the
petitioners, such factors had drastically reduced its income potential. Under the circumstances, the petitioner had submitted a representation before the
authorities seeking remission of the kist money.
It is not in dispute that the period of settlement of the firshery is already over and the petitioner society is no longer operating the fishery. Therefore,
the only live issue surviving in both the writ petitions pertains to the question as to whether the petitioner society would be entitled to remission of upto
40% of the revenue/kist money as per recommendation made by the SDO(C) Dhakuakhana as well as the Circle Officer, Subansiri Revenue Cirle.
The Circle Officer, Subansiri Revenue Circle in its report submitted on 11/07/2013 had recorded finding of facts indicating that there was loss of
earning of the lessee and 40% remission of revenue was recommended to the authorities. Taking note of the ground realities, even the Sub-Divisional
Officer ©, Dhakuakhana had submitted a report dated 19/08/2013 addressed to the Secretary to the Government of Assam, Revenue Department,
Dispur, Assam, recommending remission of 40% revenue in favour of the petitioner association.
Rule 16 of the Assam Fishery Rules, 1953 contains a provision which permits the authorities to grant remission of the revenue payable to the lessee
on the ground of hardship. Notwithstanding the same, the petitioner's representation seeking remission was rejected by the respondents with
considering the grounds taken therein. Aggrieved thereby the petitioner had approached this Court by filing WP(C) No. 6902/2013.
During the pendency of the aforesaid writ petition, the respondent no. 4 i.e. the SDO(C) Dhakuakhana, who had earlier recommended 40%
remission of kist amount in favour of the petitioner society, had issued order dated 22/07/2014 calling upon the petitioner to pay an amount of Rs.
5,69,841/- being the outstanding kist amount immediately. Aggrieved by the order dated 22/07/2014, the petitioner had filed the second writ petition,
which is registered and numbered as WP(C) No. 4917/2014.
Mr. Deka, learned counsel for the petitioner submits that there are recommendations by the Circle officer as well as the SDO(C) in favour of the
petitioner for remission of 40% of kist money and such recommendation is based on narration of detail facts and circumstances contained in the
report. Notwithstanding the same, the impugned order dated 22/07/2014 has been passed mechanically without taking note of the ground realities,
thereby, prejudicing the rights and interest of the petitioner.
Mr. Doley, learned Government Advocate, Assam has fairly admitted that the impugned order dated 22/07/2014 does not reflect the proper
consideration of the reports submitted by the Circle Officer, Subansiri Revenue Circle as well as the SDO(C), Dhakuakhana but he contends that
unless the petitioner society deposits the admitted amount, no relief can be granted in their favour.
From the materials available on records, I find that both the reports dated 26/11/2012 as well as 11/07/2013 have narrated the facts and
circumstances based on which the recommendation for remission of 40% of the kist money had been made in favour of the writ petitioner society. A
perusal of such ground makes out a prima facie case in favour of the petitioner society. As such, it was incumbent upon the respondents to consider
those factors before passing the impugned orders rejecting the prayer seeking remission of kist money. It is more so because of the provision of Rule
16 of the Fisheries Rules which enjoins a duty upon the authorities to consider such prayer of hardship made by the lessee. In the present case, it is
not in doubt that no such consideration has been made before rejecting the prayer of the petitioner.
In view of the above and as agreed to by the learned counsel for the parties, I dispose of both the writ petitions by remanding the matter to the
Commissioner and Secretary to the Government of Assam, Fishery Department with a direction to examine the matter and pass a speaking order
redressing the grievance of the petitioner, after taking into consideration, all the attending facts and circumstances of the case.
The aforesaid exercise would, however, be subject to the condition that within 30(thirty) days from today, the petitioner deposits 60% of the
amount claimed under the impugned notice dated 22/07/2014 and thereafter, submits particulars of such deposit along with the certified copy of this
order before the Commissioner and Secretary to the Government of Assam, Fishery Department, Dispur, Guwahati.
Subject to the fulfillment of the above condition, the impugned order dated 22/07/2014 shall not be given effect to until such time the exercise as
directed by this Court is completed by the respondent authorities.
With the above observation, the writ petition stands disposed of. There would be no order as to costs.