- (1.) 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 Cachar 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 co-operative 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 now they were permanently residing in Darrang District and they could not be deprived of getting the 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 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.
(2.) Appeals were carried against the said order. The Division Bench of the High Court which considered the matter took the view that the Maimal Community of Cachar District had been put at par with other Scheduled Caste of the State as notified by the President by public notification under Art. 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.
(3.) 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.;