Decided on February 05,1985

Md. Mafizuddin Appellant
Nowgong Mahkuma Parishad And Ors. Respondents


K. Lahiri, A.C.J. - (1.)THIS is an application under Article 226 of the Constitution of India questioning the jurisdiction of Nowgong Mahkuma Parishad to settle Salanabori Beel fishery. There is no wrangle at the Bar that the Mahkuma Parishad was established under Section 3(1) of the Assam Panchayati Raj Act. The territorial jurisdiction of the Mahkuma Parishad was well -defined. Further, the Gaon Panchayats falling, within the Mahkuma Parishad were also declared by a Notification issued under Section 4 of the aforesaid Act. There is also no dispute that the fishery or meen mahal falls within the territorial limits of the Mahkuma Parishad, The beel was declared a 'meen mahal' by the Mahkuma Parishad and notice issued to settle the meen mahals by notice dated 23.11.83. It is admitted by the Petitioner in his application to the Deputy Commissioner, Nowgong (Annexure -2 to the petition) that it is a "fishery doba". As such, there is no dispute that this was a fishery since before the Mahkuma Parishad was constituted. As it was a fishery doba, the Mahkuraa Parishad declared it to be a Meen Mahal and invited tenders and made settlement with Respondent No. 3, Shri Makbmal Deka, Learned Counsel for the Petitioner (sic) that it is not a registered Government fishery or a Government fishery, It is also admitted that it is not a Gaon Panchayat fishery. As such, the area within which the Meen Mahal or the fishery is situated belongs to the Mahkuma Parishad. The day the Notification was issued, all areas declared to be within the Mahkuma Parishad came under the territorial jurisdiction of this Mahkuma Parishad. The fishery falls within the territorial jurisdiction of the Mahkuma Parishad. The State also does not claim that it is a Government fishery. Indeed, if it were a Government fishery, vesting was necessary under Section 72 of the Assam Panchayati Raj Act. As such, this is a fishery of the Mahkuma Parishad falling within its jurisdiction and it had powers to invite tender and settle the fishery. In our opinion, Section 73 of the Assam Panchayati Raj Act empowers the Mahkuma Parishad to settler such fisheries by inviting tenders, no matter whether it is a Government registered fishery since vested by transfer in the Mahkuma Parishad or it is a Gaon Panchayat fishery. All fisheries within the Mahkuma Parishad no matter whether it falls within the Gaon Panchayat area excluding, of course, the Government registered fishery, can be settled by the Mahkuma Parishad, unless the area in question belongs to a private individual, or unless the fishery is a private fishery, as contemplated under the Assam Private Fisheries Protection Act. The term 'fishery' as used in the Assam Panchayati Raj Act does not take the definition of fishery under the Fishery Rules framed under Section 155 and 156 of the Assam Land and Revenue Regulation and Section 6 of the Indian fisheries Act. The term fishery' according to Rule 1 of the Fishery Rules means, the waters declared to be a fishery by proclamation issued under Section 16 of the Assam Land and Revenue Regulation, 1886 (1 of 1886) and includes khaos or fishways, dobas and beels; and "fish" includes shell -fish and turtles. Those fisheries declared to be fisheries under Rule 1 of the Assam Fishery Rules may not be the fisheries of the Mahkuma Parishad. However, in so far as this Meen Mahal or fishery is concerned it is not constituted under Section 16 of the Assam Land and Revenue Regulation, 'The term fishery' used in the Assam Panchayati Raj Act means, a hatchery or a place of catching fish. As such, if any about of water where fish is available and it falls within the jurdiction of the Mahkuma Parishad is a fishery of the Mahkuma Parishad, and it has right to settle it.
(2.)FOR the foregoing reasons, we hold that in respect of the fishery in question, Respondent No. 1 Nowgong Mahkuma Parishad has had jurisdiction to settle it. However, in the instant case, the Petitioner has claimed their customary right to fish in that sheet of water and jute rotting therein. If they show the said right they shall have to establish the same is a competent Court and they shall be entitled to exercise that right only after establishing so. However, we cannot on that ground take away the right of the Mahkuma Parishad to settle the fishery. It will be open to the Petitioner to ask for relief in an appropriate forum, if so advised.
In the result, the petition is dismissed in limine.


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