Kulai Das v. The State of Assam and 8 Ors

ORDER

16.12.2024

¶1Heard Mr. H.K. Mahanta, learned counsel for the petitioner, Mr. D. Gogoi, learned Standing Counsel for the respondent nos.4 & 5 and Mr. M. Chetia, Page No.# 3/8 learned counsel for the respondent nos.6, 7 & 9.

¶2The case of the petitioner herein is that the petitioner is a settlement holder of Kharjanghuli Meen Mahal, which was settled with the petitioner vide order dated 16.07.2021, for a period of 7 (seven) years. Be that as it may, the respondent No.4 had initiated a tender process and settled some portion of the area falling within the settled fishery of the petitioner with the respondent No.8, vide orders dated 29.06.2024. It is the case of the petitioner that the said action could not have been taken by the respondent nos.4 and 5, taking into account the fact that the Mising Autonomous Council (MAC) has no authority or jurisdiction to settle any water body/fishery.

¶3The learned counsel appearing on behalf of the petitioner has referred to a judgment dated 20.08.2024 of this Court, in the case of Dibrugarh Fishery Cooperative Society Ltd. Vs. State of Assam, WP(C) 3065/2024, whereby this Court had categorically held that the MAC had no authority to make settlement of any fishery or even natural water bodies, in view of the notification dated

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

¶4H.K. Mahanta, learned counsel for the petitioner and the counsels for the respondents submit that in view of the disposal of a similar matter in WP(C) 3065/2024, i.e. "Dibrugarh Fishery Cooperative Society Ltd. Vs. State of Assam and 5 Others", vide judgment and order dated 20.08.2024, the present writ petition can also be disposed of in the same line. Page No.# 4/8

¶5The issue as to whether the authorities under MAC have any authority to settle any fishery or natural water bodies in the MAC area has been settled by the judgment and order dated 20.08.2024 passed in WP(C) 3065/2024. In WP(C) 3065/2024, this Court has held that neither the General Council or the Village Council of the MAC has the authority to settle any fishery or 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.

¶6Paragraph 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 herein below 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 are 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 Page No.# 5/8 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 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 Page No.# 6/8 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. ....................... .......................

¶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 Page No.# 7/8 Explanation, the order dated 07.03.2017, would be a law within the meaning of Section 81 of the Act of 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 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." Page No.# 8/8

¶7As this Court does not find any ground to come to a different view as taken in the judgment passed by this Court in WP(C) 3065/2024, the settlement of the Kharjanghuli Meen Mahal in favour of the respondent No. 8 requires to be interfered with, inasmuch as, no settlement should have been made by the General Council or Village Council of the MAC in respect of any fishery or natural water bodies located within the MAC area. Thus, any overlapping of the Kharjanghuli Meen Mahal, on the basis of the impugned orders dated

29.06.2022 issued by the respondent nos. 4 & 5, granting settlement of the Meen Mahal, would have to be interfered with.

¶8Accordingly, this Court holds that the impugned orders dated 29.06.2022, issued by the respondent nos.4 & 5, granting settlement of the Meen Mahal in favour of the respondent No. 8, insofar as it overlaps the Kharjanghuli Meen Mahal, being operated by the petitioner, being without any jurisdiction, is hereby set aside.

¶9In view of the above, the order no. MAC/MM/24-26/32/162 dated

29.06.2024, order no. MAC/MM/24-26/32/156 dated 29.06.2024 and order no. MAC/MM/24-26/32/164 dated 29.06.2024 are hereby set aside.

¶10The writ petition is accordingly disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/8 GAHC010225492024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5907/2024o KULAIoDASo S/OoSRIoBHADRESWARoDAS,o VILLAGEoCHILATOLA,oPOoBALICHAPORI,oPSoGARMUR,oDISToMAJULI,o ASSAMo785104 VERSUSo THEoSTATEoOFoASSAMoANDo8oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM,oFISHERYoDEPARTMENT,oDISPURoGUWAHATIo781006 2:ASSAMoFISHERYoDEVELOPMENToCORPORATIONoLTD. oREPRESENTEDoBYoTHEoMANAGINGoDIRECTOR oVIPoROAD oCHACHALoGUWAHATIo781036 3:THEoMANAGINGoDIRECTOR oASSAMoFISHERIESoDEVELOPMENToCORPORATIONoLIMITED oVIPoROAD oCHACHALoGUWAHATIo781036 4:MISSINGoAUTONOMOUSoCOUNCILo(MAC) oREPRESENTEDoBYoITSoCHIEFoEXECUTIVEoMEMBER oGOGAMUKH oPOoGOGAMUKH oPSoANDoDISToDHEMAJI oASSAMo787034 5:THEoPRINCIPALoSECRETARY oMISINGoAUTONOMOUSoCOUNCIL oGOGAMUKH Page No.# 2/8 PO GOGAMUKH PS AND DIST DHEMAJI ASSAM 787034 6:THE DISTRICT COMMISSIONER MAJULI DISTRICT GARMUR PO AND PS GARMUR DIST MAJULI ASSAM 7:THE ADDITIONAL DEPUTY COMMISSIONER (REVENUE ) MAJULI DISTRICT GARMUR PO AND PS GARMUR DIST MAJULI ASSAM 8:SRI KIRAN PAYENG S/O SRI SARAT PAYENG VILLAGE BORGAYAN PO 1 NO. BARGAYAN PS GARMUR DIST MAJULI ASSAM 785104 9:THE CIRCLE OFFICER MAJULI REVENUE CIRCLE KAMALABARI PO KAMALABARI DIST MAJULI ASSAM 78510 Advocate for the Petitioner : MR H K MAHANTA, MS E B GOGOI,MR. R D BHUYAN Advocate for the Respondent : GA, ASSAM, SC, M A C,SC, AFDC,SC, FISHERY BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA