Pijupara Haridoba Paharpara Jallally Matchya Babyasai Sampradai Society vs State of Assam and Others

This application under Article 226 of the Constitution of India has been filed by M/S Pijupara Haridoba Paharpara, Jal jally Matchya Babyasai Sampradai Samittee Ltd., hereinafter referred as ''Pijupara'' challenging the order of settlement No. FISH. 18/81 / 815 dated 24th October, 2000 whereby No. 3{B) Lower Part Brahmaputra and No. 13 Rupna Jaljally Kholabandha Fishery under Kamrup District for short ''the fishery'' was settled with the private respondent No. 4 M/S Guwahati Anunnata Sampradai Bahumukhi Samabai Samity Ltd., hereinafter referred as ''the respondent society.

Heard Mr. K.K. Mahanta, learned counsel for the writ petitioner, Mr. A.K. Bhattacharaya, senior Advocate for the respondent society and the learned Govt. Advocate.

The case of the petitioner Pijupara is that the said society is constituted with 100% actual fishermen and they reside in the neighbourhood of the fishery which is a 60% fishery. The said fishery is also within the area of operation of the petitioner Pijupara and it was settled with them for the period from 25.7.1995 to 24.7.2000. On the expiry of the said period, the petitioner was allowed to operate the fishery till a fresh settlement is made. However, vide impugned order dated 24.10.2000 the fishery was settled with the private respondent and the petitioner was ousted from consideration on non-existing grounds. The impugned order of settlement has been challenged by the petitioner mainly on the following grounds.

On perusal of the impugned order (Annexure-6) it is seen that as many as four societies submitted offer and the case of the petitioner society was rejected mainly on the ground that the petitioner Pijupara is a defaulter and his case has not been recommended by the Deputy Commissioner. It is further stated that the petitioner Pijupara failed to deposit the kist money till 11.8.2000. Learned counsel for the petitioner has submitted that the state Government vide their letter dated 24.7.2000 (Annexure-3) had allowed the petitioner Pijupara to deposit the entire defaulting amount within a period of two months with effect from 24.7.2000. The amount is to be paid on or before 23.9.2000. The petitioner Pijupara has filed document and copies of receipts to show that the said payment was made by them in two instalments that is on 11.8.2000 and 22.9.2000. The Additional Deputy Commissioner, Kamrup, Guwahati has also given a certificate to that effect. The payment of the amount on or before expiry of the extended period is not in dispute in this case. Learned counsel for the respondent society however submits that the petitioner was given time to make the payment within the extended period; but that does not change the character of defaulter and the present petitioner continues to be termed as a defaulter. Petitioner had prayed for time for payment of the defaulting amount and once the authority concerned on consideration has granted a fixed period or date for making the payment and if the said amount has been paid within that period, the case of the petitioner cannot be thrown out of consideration on the ground of defaulter. In the impugned order of settlement the concerned authority has merely observed that the petitioner Pijupara has filed to deposit the kist money till 11.8.2000 whereas the said society was given time till 23.9.2000. The impugned order of settlement was passed on 24.10.2000 and as such the authority had sufficient time and opportunity to obtain necessary information on the matter. As a matter off act a bare perusal of the impugned order shows that the authority considered the report of the Deputy Commissioner in respect of the respondent society only as the Deputy Commissioner did not submitted any report in respect of the two other applicants and an uptodate report regarding payment etc. in favour of the petitioner Pijupara. Hence the ousting of the petitioner Pijupara from consideration was on non-existing grounds.

The petitioner also alleged that the respondent society is not constituted of 100% fisherman and as such they are not entitled to settlement of 60% category fishery. The allegations are controverted by the respondent society and in this writ petition this court will not like to enter into the above dispute. It is for the concerned authority to examine the allegation and record finding on that count.

The impugned order of settlement has further been challenged on the ground that the members of the respondent society do not reside in the neighbourhood of the fishery.

A full Bench of this court in the case of Arabinda Das and etc. Vs. State of Assam and Others, considered the provisions contained in proviso to Rule 12 and held that the said rule has been introduced to preserve and protect the interest of the fishing community to ameliorate their conditions so that the persons in the neighbourhood of the fishery can ek out their livelihood. The matter was again considered by this court in the case of Mangaldoi Pioneer Fishery Cooperative Society Ltd. v, State of Assam and others reported in (1996) 3 GLR 79 and this court held that so long the proviso to rule 12 of the Fishery Rules exits, direct settlement can be given on the basis of the neighborhood. The court further provided :

"While giving settlement the Government shall consider the following :

"(i) Whether the claimant-fishery cooperative society is formed with 100% actual fisherman of fishing population belonging to the Scheduled Castes Community of the State or Maimal Community of Cachar District:

(ii) Whether the member 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,"

In the present case the respondent society has filed an affidavit-in-opposition enclosing therewith a report of the Deputy Commissioner (Annexure-B) wherein it is stated that the fishery applied for is far away from the area of operation of the members of the respondent society. Thus there is no dispute at the Bar that the fishery in question is not within the area of operation of the respondent society and the members of the respondent society admittedly do not reside in the neighbourhood of the fishery. As regards the question of area of operation and "neighbourhood" respondent society has submitted that they have got an office on the bank of the fishery and as such the proviso to Rule 12 is complied with. They have also filed a certificate to that effect. The question that crops up is whether opening of an office by a cooperative society within the area of operation and/or in the neighbourhood of the fishery is enough to entitle the society to claim for settlement under proviso to Rule 12 stated above. The above provision was incorporated so that the actual fisherman living in the nighbourhood of the fishery can eke out their livelihood from the settlement. If the plea raised by the respondent society is accepted, in that case any cooperative society situated in any part of the State can open an office in the neighbourhood of another fishery and can claim settlement. If a multinational foreign company opens an office at Guwahati does it become an Indian company? If the opening of an office is found sufficient then the very purpose of the rule will be lost. In the impugned order of settlement the concerned authority has remained silent on this point and has not given any finding by observing that the members of the respondent society reside in the neighbourhood of the fishery.

In view of the foregoing discussion it is crystal clear that the concerned authority failed to take note of the relevant consideration while passing the impugned order and it has ousted the petitioner pijupara from consideration on non-existing grounds. The writ petition is allowed and the impugned order of settlement is set aside. The State Government is directed to dispose of the entire matter and pass final order in accordance with the rules and the law as laid down. Till the settlement of the fishery in question is made, the State Government will be at liberty either to manage the fishery departmentally or through the petitioner society as it deems fit and proper. If any payment has been made by the respondent society pursuant to the impugned order of settlement which has been set aside, it is needless to mention that the respondent society will be entitled to refund of the same.