Natun Gotonga R H Self Help Group and Anr v. The State of Assam and 8 Ors

ORDER

29.08.2024

¶1Heard Mr. H. Buragohain, learned counsel for the petitioners in WP(C) 3559/2024, WP(C) 3558/2024, WP(C) 3560/2024, WP(C) 3561/2024 and WP(C) 3731/2024. Also heard Mr. T.J. Mahanta, learned Senior Counsel assisted by Ms. R.M. Barooah, learned counsel for the petitioners in WP(C) 3731/2024. Mr. P. Sharma, learned counsel appears for the Fishery Department and Assam Fishery Development Corporation (for short, 'the AFDC'). Mr. D. Gogoi, learned counsel appears for the Mising Autonomous Council (for short, referred to as 'MAC'). Mr. R. Dhar, learned counsel appears for the private respondent in WP(C) 3559/2024, WP(C) 3558/2024, WP(C) 3560/2024 and WP(C) 3561/2024. Ms. U. Das, learned counsel appears for the District Commissioners of the various concerned Districts.

¶2The issues raised in these writ petitions is with regard to whether the MAC has the authority to settle any Fishery or natural water bodies within the area of the MAC. As such, the connected issue that is to be decided, is as to whether the MAC could have issued any Notice Inviting Tender (NIT for short) for settlement of any Fishery or natural water bodies within the area of the MAC.

¶3In WP(C) 3559/2024, the petitioners are aggrieved with the settlement order of a fishery made by the MAC in favour of the private respondent, without issuance of an NIT. In WP(C) 3558/2024, WP(C) 3560/2024, WP(C) 3561/2024 and WP(C) 3731/2024, the petitioners are aggrieved with the settlement of the Page No.# 15/20 Fishery by the MAC with the private respondents, without issuing an NIT, even though the petitioners are the existing lessee of the said Fishery, on the basis of settlement orders issued by the Fishery Department, Government of Assam or the Assam Fishery Development Corporation (AFDC). In WP(C) 3971/2024, the petitioners are aggrieved with the issuance of the NIT dated 05.06.2024 by the MAC, for settlement of fisheries located within the MAC area.

¶4The counsels for the petitioners submit that the said issues have already been decided by a Coordinate Bench of this Court in a batch of writ petitions, the lead case being WP(C) 3065/2024. They accordingly submit that the present writ petitions can be disposed of in line with the judgment and order dated

20.08.2024 passed in WP(C) 3065/2024.

¶5The counsels for the respondents also submit that the present batch of cases are covered cases in terms of the judgment and order dated 20.08.2024 passed in WP(C) 3065/2024.

¶6I have heard the learned counsels for the parties.

¶7A perusal of the judgment and order dated 20.08.2024 passed by a Coordinate Bench of this Court in WP(C) 3065/2024 shows that the present batch of writ petitions is covered by the above judgment.

¶8On perusal of the judgment and order dated 20.08.2024 passed in WP(C) 3065/2024, I do not find any grounds to disagree with the decision taken by the Coordinate Bench of this Court, wherein it has been held that neither the Page No.# 16/20 General Council or the Village Council of the MAC has the authority to settle any Fishery or even natural water bodies, as notified in the Notification dated

07.03.2017, issued in the name of the Governor by the Principal Secretary to the Government of Assam, Fishery Department.

¶9Paragraph 39, 40, 44, 45, 47, 48, 50 & 51 of the judgment and order dated 20.08.2024 passed in WP(C) 3065/2024 are reproduced hereinbelow, as follows : "39. In the backdrop of the above, this Court further finds it relevant to take note of the order dated 7th of March 2017 issued in the name of the Governor by the Principal Secretary to the Government of Assam, Fishery Department. The contents of the said order is reproduced herein below:-

" ORDER Dated the 7" March, 2017

No. FISH. 224/2014.-In exercise of power conferred by Section 155 and 156 of Assam Land & Revenue Regulation, 1886 (Regulation 1 of 1886) read with Section 6 of Indian Fisheries Act, 1897 (Act No. 4 of 1897) the Governor of Assam is pleased to vest the administrative control of all natural water bodies viz. beels, ox-bow lakes, low laying areas, swamps, derelict water bodies, dead river courses, river tributaries and reservoirs with the Fishery Department henceforth which are presently being settled by Revenue & Disaster Management Department and are administered by concerned Deputy Commissioner/SDO of a district/civil sub-division for proper scientific method of conservation and management and for sustainable development of such rich natural resources in a productive manner or overall economic development of people living in the vicinity of such natural water bodies. Accordingly, the Revenue & Disaster Management Department shall hand over possession of such natural water bodies under the Department through concerned DC/SDO to Fishery Department represented by DFDO of the concerned district. Consequently upon above, the land record of concerned Page No.# 17/20 Revenue Circle & Sadar records shall be modified to reflect the administrative control of such natural water bodies by the Fishery Department. It is further ordered that, in case of any such natural water body already leased out by concerned DC/SDO; the right of fishing over such natural water bodies by the lessee shall not in any way get affected till expiry of the lease period subject to the condition that such lessee shall not obstruct in any way the steps taken by the Fishery Department for development of such natural water bodies in the intervening period till completion of lease."

¶40A perusal of the said order would show that the administrative control over all natural water bodies upon which the Revenue Department was exercising the administrative control was transferred to the Fishery Department of the Government of Assam. A conjoint reading of Section 16 of the Regulation with the order dated 07.03.2017 would show that while Section 16 of the Regulation referred to collection of water, running or still which could be declared as a fishery, the order dated 07.03.2017 provide with details what would be construed to be a natural water body. However, there appears to be a fundamental difference in as much as in Section 16 of the Regulation, any collection of water, running or still, could be declared to be a fishery as per the manner prescribed and in such declared fishery, the rights to the fishery shall be subject to the Rules to be framed in terms with Section 155 (f) of the regulation whereas vide the order dated 07.03.2017, all the administrative control of the natural water body was transferred from the Revenue Department to the Fishery Department whether there is a proclamation declared or not. This aspect of the matter is a clear pointer to the fact, that the State Government would only have executive powers over any collection of water, running or still including all natural water bodies in the State of Assam. Be that as it may, for the sake of clarity, it observed that the said observation would not be applicable in so far as the 6th Schedule Area of the State of Assam provided the Governor exercises the powers mentioned in Paragraph No.6(2) of the 6th Schedule to the Constitution. ....................... ....................... Page No.# 18/20

¶44Section 23 of the Act of 1995 stipulates that the General Council may subject to the Act of 1995 or the Rules which have been framed and further subject to the approval of the Government make byelaws to be applicable within the Council Area with respect to all or any of the matters enumerated in Sections 18, 19, 43 & 44 of the Act of 1995 for the Regulation, Control and Administration thereof, and such byelaws shall have effect upon publication in the Official Gazette. Taking into account the mandate of Section 23 of the Act of 1995, which requires the byelaws to have the approval of the State Government, it is clear that for the purpose of Regulation, Control and Administration of the matters enumerated in Section 18 of the Act of 1995 including fisheries, the General Council of the MAC cannot exercise any powers of Regulation, Control and Administration of the fisheries without the byelaws being made with the due approval of the State Government. This aspect is important in as much as admittedly there are no byelaws made under Section 23 of the Act of 1995 in so far as fisheries are concerned.

¶45At this stage, this Court finds it relevant to take note of Section 79 of the Act of 1995 which only empowers only the State Government to make Rules. Admittedly, neither the Rules have been made in terms with Section 79 by the State Government, nor any byelaws have been made in terms with Section 23 of the Act of 1995 in so far as fisheries are concerned. ................. .................

¶47A perusal of the said provision stipulates that the provisions of the Act of 1995 shall not affect the application of any laws, whether made before or after the Act of 1995 has come into force to the Council Area, unless such law specifically provides for exclusion of the Council Area of such application. The Explanation also is equally important in as much as the term "law" has been stipulated to include any enactment, ordinance, regulation, order, byelaw, rules, schemes, notification or other instrument having the force of law. In view of the Explanation, the order dated

07.03.2017, would be a law within the meaning of Section 81 of the Act of Page No.# 19/20 1995. Therefore, by virtue of section 81 of the Act of 1995, Section 16 of the Regulation, Rules of 1953 as well as the notification dated 07.03.2017 would apply to the Council Area of the MAC taking into account that the said provisions as well as the order dated 07.03.2017 do not exclude the Council Area from its application. A priori ergo is that any collection of water, still or running including all natural water bodies as exemplified and explained in the notification dated 07.03.2017 would administratively vest upon the Fishery Department of the Government of Assam.

¶48The question therefore arises as to whether in such a situation where the declared fishery as well as all natural water bodies are outside the administrative control of the MAC can the General Council of the MAC settle any fishery. The answer to the same has to be in the negative taking into account that the Rules of 1953 as well as the notification dated

07.03.2017 would have an overriding effect in view of Section 81 of the Act of 1995 and consequently, if the MAC does not have the administrative control over the natural water bodies, whether a declared fishery or not, it would have no right to grant settlement or for that matter initiate any process for settlement. ......................... .........................

¶50Another aspect of the matter, which is the supplementary point for determination is as to whether in absence of the prescription which is required to be made by the Government of Assam by framing Rules under Section 79 of the Act of 1995 and further without there being any Byelaws made which are required to be made in terms with Section 23 of the Act of 1995, whether the General Council can exercise the executive powers in respect to fisheries. The answer has to be in the negative in as much as Section 23 of the Act of 1995 categorically states that the Regulation, Control and Administration of the subjects mentioned in Section 18 of 1995 has to be prescribed by the Byelaws. As there are no Byelaws for regulation, administration and control of fisheries, the MAC cannot exercise its executive powers over the fisheries.

¶51In that view of the matter, this Court is of the opinion that neither Page No.# 20/20 the General Council or the Village Council of the MAC has the authority to settle any fishery or even natural water bodies as exemplified in the notification dated 07.03.2017 and consequently they cannot also initiate process for settlement."

¶10As this Court does not find any ground to come to a different finding with respect to the issues raised in the present batch of writ petitions, vis-a-vis the judgment passed by a Coordinate Bench of this Court in WP(C) 3065/2024, this Court also holds that the General Council or the Village Council of the MAC does not have the authority to settle any Fishery or natural water bodies with any person or society, as per the Notification dated 07.03.2017. Accordingly, the issuance of an NIT, for settlement of the said Fisheries lying within the area of the MAC is also beyond the competence of the MAC. The settlement of the Fisheries made in favour of the private respondents in WP(C) 3559/2024, WP(C) 3558/2024, WP(C) 3560/2024, WP(C) 3561/2024 and WP(C) 3731/2024 are hereby set aside. Further, the issuance of the NIT dated 05.06.2024 in WP(C) 3971/2024 for settlement of the Fishery within the MAC area by the MAC is also set aside.

¶11The writ petitions are accordingly allowed.

JUDGE Comparing Assistant

PageoNo.#o1/20 GAHC010141312024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3559/2024o TRIMURTIoANUSUSHITAoJATIoSIKHITAoNIBONUWAoSELFoHELPoGROUPoAND ANRo BEARINGoREGISTRATIONoNO.oGDB/DHK/67oANDoHAVINGoITSoREGISTERED OFFICEoAToVILL-oTELIADUNGA,oPUKHURIPAR,oP.O.oBHARALUWAoTINALUI, P.S.oGAURISAGAR,oDIST.-oSIVASAGARo(ASSAM),oPIN-o785664oANDo REPRESENTEDoBYoITSoSECRETARYoSHRIoDILIPoHAZARIKA 2:oSHRIoDILIPoHAZARIKA oS/O-oLATEoJHURAMoHAZARIKA oSECRETARYoOFoTRIMURTIoANUSUSHITAoJATIoSIKHITAoNIBONUWAoSELFo HELPoGROUP oRESIDENToOFoVILL-oTELIADUNGA oPUKURIPAR oP.O.oBHARLUAoTINALI oP.S.oGAURISAGAR oDIST.-oSIVASAGARo(ASSAM) oPIN-o78566o VERSUSo THEoSTATEoOFoASSAMoANDo8oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM,oFISHERYoDEPARTMENT,oHAVINGoITSoOFFICEo AToDISPUR,oGUWAHATI-o781006,oDISTRICT-oKAMRUPo(M),oASSAM 2:THEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oFISHERYoDEPARTMENT oHAVINGoITSoOFFICEoAToDISPUR oGUWAHATI-o781006 oDISTRICT-oKAMRUPo(M) oASSAM 3:THEoADDITIONALoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oFISHERYoDEPARTMENT Page No.# 2/20 HAVING ITS OFFICE AT DISPUR GUWAHATI- 781006 DISTRICT- KAMRUP (M) ASSAM 4:THE DEPUTY SECRETARY TO THE GOVERNMENT OF ASSAM FISHERY DEPARTMENT HAVING ITS OFFICE AT DISPUR GUWAHATI- 781006 DISTRICT- KAMRUP (M) ASSAM 5:THE DISTRICT COMMISSIONER SIVASAGR HAVING ITS OFFICE AT SIVASAGAR TOWN DISTRICT- SIVASAGAR ASSAM 6:THE MISING AUTONOMOUS COUNCIL REPRESENTED BY THE PRINCIPAL SECRETARY HAVING ITS OFFICE AT GOGAMUKH DHEMAJI ASSAM 7:THE PRINCIPAL SECRETARY MISSING AUTONOMOUS COUNCIL GOGAMUKH DHEMAJI ASSAM 8:THE CHIEF EXECUTIVE OFFICER/MEMBER MISSING AUTONOMOUS COUNCIL GOGAMUKH DHEMAJI ASSAM 9:SRI BIKRAM SING MILI SON OF JOGESH MILI VILLAGE- JANA MIRI BORGAON P.O. BHARALUA TINIALI P.S. GAURISAGAR DIST.- SIVASAGAR PIN- 78566 Advocate for the Petitioner : MR. H BURAGOHAIN, MS. S NATH,MR. C AGARWAL Advocate for the Respondent : GA, ASSAM, MR. B PEGU (r-9),MR R DHAR (r-9),SC, FISHERY Page No.# 3/20 Linked Case : WP(C)/3731/2024 DIGHALIA SINGRAJAN MEEN SAMABAI SAMITY LIMITED AND ANR REPRESENTED BY ITS SECRETARY SRI BEDAKANTA DAS HAVING ITS REGD. OFFICE AT VILL.- JAIL GAON P.S. DISANGMUKH P.S. AND DIST. SIVASAGAR ASSAM-785663. 2: BEDA KANTA DAS SECRETARY DIGHALIA SINGRAJAN MEEN SAMABAI SAMITY LIMITED S/O- LATE JUGIRUM DAS R/O- VILL.- JAIL GAON P.S. DISANGMUKH P.S. AND DIST. SIVASAGAR ASSAM-785663. VERSUS THE STATE OF ASSAM AND 8 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM FISHERY DEPARTMENT HAVING ITS OFFICE AT DISPUR GUWAHATI-781006 DIST. KAMRUP(M) ASSAM 2:THE SECRETARY TO THE GOVERNMENT OF ASSAM FISHERY DEPARTMENT HAVING ITS OFFICE AT DISPUR GUWAHATI-781006 DIST. KAMRUP(M) ASSAM 3:THE DISTRICT COMMISSIONER SIVASAGAR HAVING ITS OFFICE AT SIVASAGAR TOWN DIST. SIVASAGAR ASSAM 4:THE ASSAM FISHERIES DEVELOPMENT CORPORATION LTD. (A GOVT. OF ASSAM UNDERTAKING) REPRESENTED BY ITS MANAGING DIRECTOR HAVING ITS OFFICE AT CHACHAL Page No.# 4/20 VIP ROAD GHY-781036 KAMRUP(M) ASSAM 5:THE MANAGING DIRECTOR ASSAM FISHERIES DEVELOPMENT CORPORATION LTD. (A GOVT. OF ASSAM UNDERTAKING) HAVING ITS OFFICE AT CHACHAL VIP ROAD GUWAHATI-781036 KAMRUP(M) ASSAM 6:THE MISING AUTONOMOUS COUNCIL REPRESENTED BY THE PRINCIPAL SECRETARY HAVING ITS OFFICE AT GOGAMUKH DHEMAJI ASSAM 7:THE PRINCIPAL SECRETARY MISING AUTONOMOUS COUNCIL GOGAMUKH DHEMAJI ASSAM 8:THE CHIEF EXECUTIVE OFFICER/ MEMBER MISING AUTONOMOUS COUNCIL GOGAMUKH DHEMAJI ASSAM 9:MUHIRAM PANGING S/O- DEUCHARAN PANGING VILL.- LEPAI SUMONI P.O. DISANGMUKH P.S. AND DIST. SIVASAGAR PIN- 785663. ------------ Advocate for : MR. H. BURAGOHAIN Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 8 ORS Linked Case : WP(C)/3558/2024 PageoNo.#o5/20 NATUNoGOTONGAoRoHoSELFoHELPoGROUPoANDoANR REPRESENTEDoBYoITSoSECRETARYoSRIoSURENoDAS o HAVINGoITSoREGD.oOFFICEoAToVILL.oNATUNoGATANGAoKOIBARTAoGAON o P.O.-oSANTIPUR oP.S.-oSIVASAGAR o DIST.-o