Decided on September 09,1994

Lalit Kr. Das Appellant
The State Of Assam Respondents


D.N. Baruah, J. - (1.)IN this application under Article 226 of the Constitution of India, Petitioner has challenged the impugned order No. FISH. 228/93/126 dated 12.4.94 passed by the Deputy Secretary to the Government of Assam, Fishery Department, the 2nd Respondent, and prayed for issuance of an appropriate writ or direction.
(2.)THE facts of the case in short are as follows:
The Petitioner is the President of "Kumar Kaiborta Gaon Min Silpa Samabai Samity Limited", Jorhat, for short "the Petitioner society". This Society is a fishery cooperative society registered under the Cooperative Societies Act, 1949 and is formed with 100% actual fisherman Community living in the neighbourhood of No. 11 Kokila Fishery. The first Respondent settled the said fishery with the Petitioner for a period of three years, which was thereafter extended for another two years, Before expiry of the period of lease, the Petitioner society prayed for extension of another term of three years on various grounds mentioned in the petition filed before the State Government. In pursuance of an order dated 16.12.92, 3rd Respondent submitted a report dated 23.2.91 stating that the Petitioner incurred loss for the reasons beyond their control. However, the 1st Respondent settled the fishery in question with 5th Respondent society for a period of three years in purported exercise of power under proviso to Rule 12 of the Fishery Rules.
This order of settlement was challenged in a writ petition (Civil Rule No. 956/93). This Civil Rule was disposed of by this Court remanding the matter to the State Government for disposal of the application for extension of lease filed by the Petitioner. The State Government rejected the petition by order dated 14.5.93 and settled the fishery concerned with the 5th Respondent. This order was also challenged by in another writ petition (Civil Rule No. 1289/93) by the Petitioner. During the pendency of the said Civil Rule it transpired that there was no cooperative society under the name and style of "Nemati Anchalik Kaiborta Sampradai Thika Aru Min Samabai Samity Ltd.". On the other hand there was a society under the name and style of 'Nemati Anchalik Koibarta Sampradai Thika Samabai Samiti Ltd". Thus according to the Petitioner, the 5th Respondent obtained the order of settlement by committing fraud. When this fact came to the notice of the Government the Petitioner as well as 5th Respondent were directed to be present before the Government. Accordingly, both the Petitioner and 5th Respondent appeared More the Minister, Fisheries. After hearing the parties, the State Government by a W/T message withdrew the notice dated 4.6.93 and the 5th Respondent was removed from operating the fishery in question. This order was also challenged by the 5th Respondent in another Civil Rule (Civil Rule No. 1510/93). Meanwhile, (sic) judgment and order dated 27.8.93 this Court allowed the writ petition (No. Civil Rule No. 1289/93) and quashed the order dated 19.5.93. Against this order of Single Judge, the Petitioner filed a writ appeal (Writ Appeal No. 583 (T)/93). The appellate Court set aside the judgment of the learned Single Judge passed on 27.8.93 in Civil Rule No. 1289 of 1993 and directed the Government to proceed to settle the fishery in question in accordance with law. Against that appellate judgment the 5th Respondent moved Supreme Court by filing a Special Leave Petition (SLP (C) No. 16304/93). The Supreme Court granted special leave and thereafter disposed of the appeal by modifying the appellate judgment dated 3.9.93 passed by the Division Bench of this Court in Writ Appeal No. 583 (T)/93. While disposing the appeal the Supreme Court observed thus:
We are not inclined to interfere with the order of the High Court remanding the case to the State Government for fresh decision. We are, however, of the view that the High Court was not justified in going into the eligibility or otherwise of the Appellant society to claim fishery right. We leave it to the State Government to go into the eligibility of each of the claimants and take fresh decision for grant of fishery lease.

After the judgment of the Supreme Court in Civil Appeal No. 7405/93 dated 3.12.93 the Petitioner as well as the 5th Respondent were notified by the Additional Deputy Commissioner that the matter would be heard on 17.1.94. However, on that day the matter could not be heard. Ultimately, it was fixed for 23.1.94 and on that day also though the Petitioner was present the matter could not be heard and the Petitioner was informed that next date would be communicated later. However, without giving any notice to the Petitioner the matter was disposed by Annexure -7 order dt. 9.3.94 cancelling the settlement given to the Petitioner and settling the fishery in question with 5th Respondent.

(3.)THIS order of settlement was also challenged by the Petitioner society in yet another civil rule (Civil Rule No. 1083/94). This Court disposed of the aforesaid civil rule by judgment and order dated 18.3.94 setting aside the settlement given to 5th Respondent and remanding the matter to the State Government to decide the matter afresh in accordance with law.

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