ARABINDA DAS AND ETC. Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) BY these petitions under Article 226 of the Constitution of India, the petitioners have challenged the W/T message dated 22 -2 -80 issued by the Fishery Department of the Government of Assam with Memo No. VFF. 465/79/134 -A dated 22 -2 -80 under the signature of the Deputy Secretary to the Government of Assam, Fisheries Department directing all Deputy Commissioners and Sub -Divisional Officers not to open the tenders received by them or to make settlement of the fishery without prior clearance from the Government.

(2.) THE facts leading to the present petitions converge on a very narrow compass. The petitioners in both the petitions are members of the Scheduled Caste and belong to Kaivarta family selling fish in the market and dealing in fishery business. The Deputy Commissioner of Dibrugarh issued a notice of sale of fisheries of the Dibrugarh District on 12 -2 -80 inviting lenders on or before 20 -3 -80 for settlement of as many as six registered fisheries for the period of 3 years with effect from 1 -4 -80 to 31 -3 -83. In pursuance of the aforesaid sale notice, Arabinda Das, petitioner in Civil Rule No. 174 of 1980 submitted a valid tender enclosing all necessary documents as required under the terms and conditions of the sale notice by offering a sum of Rs. 75,251/ - as annual revenue on 20 -3 -80 for the settlement of Nerlogonakhona Fishery. Similarly Tapasilal Das, petitioner in Civil Rule No. 175/80 submitted a valid tender enclosing all necessary documents as required under the terms and conditions of the said sale notice by offering a sum of Rs. 11,101/ - as annual revenue on 20 -3 -80 for the settlement of Gorudhoria Fishery. It is stated by the petitioners that they made enquiries after submitting their tenders on 20 -3 -80 in the office of the Deputy Commissioner as to when the tenders would be opened and the settlement would be made. Subsequently on 29 -3 -80 the petitioners came to learn that the Fishery Department of State Government have given some instructions to the Deputy Commissioner directing him not to open tenders submitted by different tenderers for settlement of the fishery as notified by the sale notice dated 12 -2 -80 and to make settlement of such fisheries on the basis of such tenders without prior clearance from the Government. It is further stated that on enquiry it was found that the Government of Assam in the Fisheries Department had issued a W/T message which is impugned in these petitions as noticed above and by which all the Deputy Commissioners and the Sub -Divisional Officers have been directed not to open tenders and to make settlement of the fishery without prior clearance from the Government. The said W/T message is set out hereunder in extenso:

(3.) ACCORDINGLY , legislation was enacted and Regulation I of 1886 (The Assam Land and Revenue Regulation, 1886), for short 'the Regulation', was passed into law. A Register of Fisheries had to be kept and the Deputy Commissioner was empowered, with the previous sanction of the Chief Commissioner (late Provincial Government), to declare any collection of water to be a fishery. Once a fishery was so declared no person could acquire fishing rights in it except as provided by Rules drawn up under Section 155 of the Regulation. Even prior to the commencement of the Constitution, prescribed fisheries in Assam were lifted out of the realm of matters which could be disposed of at the executive discretion of either Government or officials and were placed under statutory regulation and control by Sections 16 and 155 of the Regulation under which a set of Rules was framed for the settlement of fishery. It follows that no fishery could be "settled" except in accordance with those Rules. The following are the relevant Rules as obtained at that time: