M/S Baghopuri
M.M.Sambal Samiti Vs. State of Assam & Ors [1999] INSC 107 (30 March 1999)
S.
RAJENDRA BABU, S.N. PHUKAN. RAJENDRA BABU. J. :
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 Cacher 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 cooperative 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 new they were permanently
residing in Darrang District and they could not be deprived of getting tine
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.
Appeals
were carried against the said order. The Division Bench of the High Court which
considered the matter took the view that the Mainmal Community of Cachar
District had been put at oar with other Scheduled Caste of the State as
notified by the President by public notification under Article 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.
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.
In order
to correctly appreciate the issue involved in this case, we may set out the
relevant provisions of the Rules. Rules 8, 12 and 13 read as follows :
Rule 8
:
"(a)
Settling Authority. The Deputy Commissioner or the Additional Deputy
Commissioner in case of Sadar Division and Sub-Divisional Officer in case of
other Sub-divisions shall be the authorities for settlement of all registered
fisheries under tender system of sale in their respective jurisdiction.
(b)
Extension of the term of lease, (i) Where the period of lease of registered
fisheries being ordinarily not less than three years is interfered with, due to
any natural cause or for any unavoidable reasons beyond the control of the
lessees, Government may extend the period of such lease supported by official
reports as to the nature of cause in exceptionally special cases for a
reasonable period so as to enable such lessees to make good the loss.
(ii)
The State Government may also, on the recommendation of the Director of
Fisheries extend the period of lease of a fishery with an intending pisciculturist
who should invariably be the sitting lessee and who agrees to accept such an
extension at a revenue and for such other additional terms and conditions as
may be specified by Government :
(iii)
Provided that one of the conditions of extension of lease against piscicultural
plan shall invariably be the Implementation of approved scheme or schemes of
development and improvement of such a fishery at the lessee's own cost within a
target period to be fixed by Government.
The
order of extension of lease on the aforesaid grounds, passed by the State
Government shall be final and no appeal shall lie against such orders of
extension.
(c)..,..,
(d)......
(e)
Re-sale of fisheries. When for default kist money or for violation of any of
the conditions of the fishery lease including any of the provisions of these
Rules by a lessee the fishery shall be put to re-sale under tender system at
the risk of original lessee. Notice of re-sale shall be given as in the case of
the original sale with the additional proviso that the re-sale shall be at the
risk of and on account of the original lessee.
Provided
that the question of such re-sale shall not be applicable where State
Government permits extension of time for payment of kist money." Rule 12
"Except those referred to in sub-rule No.
8(b)
above, all registered fisheries shall be settled under tender system of sale in
place of sale by auction.
Provided
that the State Government may settle any registered fishery, otherwise than under
tender system, with a fishery cooperative society frame with 100 per cent
actual fishermen of the fishing population in the neighbourhood of the fishery
concerned and belonging to Scheduled Caste of the State or Maimal Community of
the Cachar District at a revenue calculated and for a period decided by the
State Government from time to time." Rule 13 (a) "With prior approval
of the State Government not more than 60 per cent of the fisheries In a
sub-division available for settlement in a year shall be selected for sale
under tender system only with the Cooperative Fishery Societies formed with 100
per cent share holders from members of actual fishermen belonging to the
Scheduled Caste of the State and/or Maimal Community of the District of Cachar
and registered under the Assam Cooperative Societies Act, 1949. Settlement of
all such fisheries tenders of which have been accepted under R.5 shall be with
the highest tender.
(b)
The remaining fisheries in the sub-division available in that year under tender
system of sale, shall remain open for settlement to ail communities including
Co-operative Societies as referred to in Sub-R.(a) above.
(c)
Cooperative Fishery Society by members of actual fishermen belonging to the
Scheduled Castes/ Maimal Community/Scheduled Tribes/other Backward Classes and
registered under the Assam Cooperative Societies Act, 1949, shall be given
option to accept settlement of fisheries of the category as mentioned in
sub-R.(b) above at the highest tender;
provided
that their tender is within 71/2 per cent of the highest tender.
(d)
When the tenders for fisheries failing within the category referred to
Sub-R.(b) above are below 7-1/2 per cent of the highest tender (i) Co-operative
Societies as stated in sub-R.(c) above, (ii) individual members of actual
fishermen belonging to the Scheduled Castes/ and other Backward Classes who may
offer tenders not less than 60 per cent of the highest tender, may be given
option to take settlement of the fishery at the highest bid, in the order of
preference stated above subject suitability of the tenderer, (e) When a fishery
referred in sub-R.(b) above fetching a tender not exceeding Rs.50,000 per annum
is settled with any individual member from actual fishermen belonging to the
Scheduled Castes, Scheduled Tribes/Maimal Community or other Backward Classes
the tenderer shall be entitled to a rebate of 7-1/2 per cent as concession. But
when a fishery fetching a tender not exceeding Rs.one lakh (Rupees one lakh)
per annum is settled with any Cooperative Fishery Society formed by members
from communities as stated above, the tenderer society shall get a rebate of
ten per cent as concession :
Provided
that 100 per cent rebate as aforesaid shall not be available to Cooperative
Fishery Society formed with 100 per cent shareholders from actual fishermen
belonging to the Scheduled Castes of the State and the Maimal Community of the
District of Cachar if they accept settlement of fisheries as stated in
Sub-R.(a)) above;
Provided
further that such shall not be admissible in case any individual or Cooperative
Fishery Society of any protected community offers the highest tender.
(f)
Any tenderer claiming the concession provided In this rule shall indicate the
same in his tender." The validity of the said rules had been challenged in
the Gauhati High Court in Arabinda Das & etc, vs. State of Assam &
Ors., AIR 1981 Gauhati 18. In that case, the background in which the said Rules
were framed was considered and it was noticed that the Rules can be framed in
terms of the Assam Land & Revenue Regulations and the successive amendments
of the Rules made from time to time indicated the anxiety of the Government to
give a better deal to deserving persons, namely, the cooperative societies
formed by actual fishermen by settling mole and more fisheries with them, the
emphasis being that the Government was more concerned with providing work to
the actual fishermen to improve their lot than deriving revenue to the
exchequer. After analysing the various rules it was noticed as follows:
"On
a careful perusal of the proviso to Rule 12 we find that the exercise of the
power under it is not arbitrary. There are prerequisites which must be
satisfied before the power of direct settlement can be exercised by the State
Government under the proviso. These prerequisites are that:
(a) a
settlement of a registered fishery can only be made with a fishery cooperative;
(b) formed
with hundred per cent actual fishermen of fishing population;
(c) in
the neighbourhood of the fishery concerned;
(d) belonging
to the Scheduled Castes of the State or Maimal Community of the Cachar
District; and
(e) at
a revenue calculated and for a period decided by the State Government from time
to time." If we bear these principles in mind, the interpretation of
proviso to Rule 12 becomes easy. It is unnecessary to examine the question
whether the appellants belong to any backward class or Scheduled Caste when
specifically the rule stated that persons belonging to Maimal Community of the Cachar
District become eligible to apply for settlement of the registered fishery. Now
the interpretation of the said provision turns upon the exact language used by
the Government. The fact that the appellant society consists of members
belonging to Maimal Community of the Cachar District is not in dispute. Their
case is that their members belong to the Maimal Maimal Community of the Cachar
District and they fall into a class which is described in the relevant rules
and thus become entitled to seek the registered fishery.
The
learned Single Judge did not indulge in any exercise in semantics as to the
expression "Maimal Community of the Cachar District" and as to
whether the operation of the said rule is confined only to Cachar District or
outside but on the basis that the Maimal Community of the Cachar District were
members of the society and the object of the rule being to help the backward
classes they were entitled to the same even though such persons may be residing
outside the district. The Division Bench of the High Court: laid emphasis on the
expression "of the Cachar District" and, therefore, took the view
that they must belong to the Maimal Community and must reside within the
district to become entitled to the benefit of the rule. Now we may advert to
the policy adopted by the Government of Assam in the matter of backward classes
in the communication No. TAD/DC/268/75/37 dated November 27, 1975. We may notice that there are certain communities which are
recognised only in a particular area geographically. In respect of others, all
that is stated is "Kumar; Rudra Paul of Cachar" while in case of Rajbonshi
or Koch (Koch of Goalpara and Garo Hills only).
Specific
mention is made as confined to a particular area. When area of operation of a
notification Is not confined to any particular geographical region the areas
referring to persons belonging to a community of a particular district would
only be the words of description and in such cases we will have to take the
term "of" as denoting origin or descent of the persons belonging to a
particular community of an area. Ultimately it means that they hail from a
particular area and recognises them belonging to that particular district and
no more.
Therefore,
the view taken by the teamed Single Judge of the High Court appears to us to be
more reasonable and appropriate than the view taken by the Division Bench of
the High Court. During pendency of the matter before the competent authority
the benefit of interim order granted by this Court shall continue until
disposal of the matter.
On
this reasoning, we allow the appeals filed by the appellant and set aside the
order made by the Division Bench and restore that of the learned Single Judge.
The appeals are allowed accordingly. Considering the nature and circumstances
of the case, there shall be no order as to costs.
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