Allowed

Monoj Kr. Shahni v. the State of Assam and 7 Ors.

Gauhati HC3 Apr 2018WP(C)/744/2014

Case brief

AI extract

What is this about?

The Court directed the Deputy Commissioner Biswanath District to settle the Meen Mahal through a regular tender process in compliance with Assam Fishery Rules and set aside the notice for direct settlement, dismissing the petitioner's claim based on a successful earlier tender. The petitions were disposed of in light of a prior order.

What did the court decide?

The notice for direct settlement is set aside; the Deputy Commissioner Biswanath District is directed to settle the Meen Mahal via regular tender within two months.

Monoj Kr. Shahni Vs the State of Assam and 7… — Labour and Industrial Disputes | Gauhati HC (2018)

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GAHC010142882017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 6022/2017

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1:MANOJ KUMAR SHAHNI

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S/O SHRI KISHORI SHAHNI, R/O KUMALIA CENTRE, PO-PANIBHARAL VIA- BISWANATH CHARIALI, DIST. BISWANATH, ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS

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REP. BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM, FISHERIES DEPTT., DISPUR, GUWAHATI-6

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2:DIRECTOR OF FISHERIES MEEN BHAWAN ASSAM GUWAHATI

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3:COMMISSIONER NORTH ASSAM DIVISION AT TEZPUR SONITPUR

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4:DEPUTY COMMISSIONER BISWANATH DISTRICT BISWANATH CHARIALI

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5:OFFICER IN CHARGE BISWANATH CHARIALI PS- BISWANATH CHARIALI

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6:BISWANATH KUMOLIA MEEN SAMABAI SAMITY LIMITED. REGN. NO. T-24/78-78 P.O. PANIBHARAL DIST. BISWANATH ASSAM PIN-784176 REPRESENTED BY ITS SECRETARY SHRI RAJU DAS

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S/O. LATE DEBEN DAS

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Advocate for the Petitioner : MR.A BHATTACHARYA

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Advocate for the Respondent : GA, ASSAM

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with : WP(C) 744/2014

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1:MONOJ KR. SHAHNI S/O SHRI KISHORI SHAHANI R/O KUMALIA CENTRE P.O. PANBHARAL VIA BISWANATH CHARIALI DIST- SONITPUR ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND 7 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FISHERIES DEPARTMENT DISPUR GHY-6

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2:COMMISSIONER NORTH ASSAM DIVISION AT TEZPUR SONITPUR

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3:DY. COMMISSIONER SONITPUR TEZPUR

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4:SDOC BISWANATH CHARIALI

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5:DIST FISHERY DEVELOPMENT OFFICER SONITPUR TEZPUR

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6:CIRCLE OFFICER

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BISWANATH REVENUE CIRCLE BISWANATH CHARIALI SONITPUR

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7:OFFICER INCHARGE BISWANATH CHARIALI P.S. BISWANATH CHARIALI

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8:M/S BISWANATH KAIBARTA CO-OPERATIVE FISHERY LTD. BISWANATH SONITPUR. IMPLEADED VIDE H.C.O. DTD. 14.02.2014

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Advocate for the Petitioner : MR.A.Bhattacharyya Advocate for the Respondent : GA ASSAM

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BEFORE HON BLE MR. JUSTICE PRASANTA KUMAR DEKA

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ORDER

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Date : 03-04-2018

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Heard Mr.A.Bhattacharyya and Mr.J.Sarma, learned counsels appearing for the petitioners. Also heard Mr.B.Goswami, learned Additional Advocate General,Assam appearing for the respondent State and Mr.A.Das, learned counsel appearing for respondent No.6 in W.P(C) No. 6022/2017.

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These two writ petitions are filed by the same petitioner which relates to the 40% Biswanath Brahmaputra and Baghmara Meen Mahal which was under the jurisdiction of Sonitpur District earlier and now under the district Biswanath. The petitioner qualified as a valid highest bidder at Rs. 3,95,155/- annually in the tender invited for settlement of said Meen Mahal (Fishery) for 7(seven) years lease. The settlement was given to the 2^nd highest bidder following which the petitioner moved the matter before the Commissioner, North Assam i.e. respondent No. 3 who is the confirming authority under Rule 8(d) of Assam Fishery Rules 1953. The respondent No.3 vide speaking order dated 22.6.2010 disposed of the representation of the petitioner thereby directing the Deputy Commissioner, Sonitpur for granting settlement of Meen Mahal to the petitioner for a period of 7(seven) years. Later on the same was clarified that the period of settlement

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would be for lease period of 7(seven) years to make up the loss period w.e.f. 22.6.2010.

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It is submitted by the learned counsel for the petitioner that the concerned Deputy Commissioner, Sonitpur arbitrarily and under extraneous consideration referred the matter to the Government of Assam, Fishery Department vide letter dated 22.7.2010 though there was a specific direction from the respondent No.3 to settle the fishery to the petitioner. Inspite of repeated requests, the Government of Assam, Fishery Department did not issue any direction and being aggrieved the petitioner filed WP(C) No. 744/2014. In the said writ petition a report was sought for from the Deputy Commissioner, Biswanath District by the Chief Minister’s Secretariat and vide letter dated 19.7.2016 the Deputy Commissioner submitted report to the Chief Minister’s Secretariat requesting for issuance of a direction/instruction in the matter referred to the Govt. of Assam, Fishery Department by the Deputy Commissioner, Sonitpur District vide letter dated 22.7.2010. Thereafter, the Deputy Commissioner, Biswanath District asked the petitioner to appear before the Principal Secretary, Fishery Department on 21.2.2017 in respect of the claim of the said Meen Mahal, as referred by letter dated 22.7.2010 from the Deputy Commissioner, Sonitpur. After appearance before the Principal Secretary, the present petitioner was under the impression that a fresh settlement as per the order of the Commissioner, North Assam Division dated 22.6.2010 would be made in favour of the petitioner. Instead, the Deputy Commissioner, Biswanath District vide Memo No. BNF.32/2016/104(A) dated 21.8.2017 sought for application from eligible society for direct settlement of the said Meen Mahal i.e. 40% Biswanath Brahmaputra and Baghmara Meen Mahal at the same rate of writ petitioner fixing the date of 22.9.2017 as the last date for receiving application. Being aggrieved the present petitioner had to file the WP(C) 6022/2017.

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Learned counsels for the petitioner submits that the initial act of Deputy Commissioner, Sonitpur of settlement of the said Meen Manhal to the second highest bidder was illegal. Accordingly, the petitioner moved the Commissioner, North Assam Division who is the confirming authority under Rule 8(d) of Assam Fishery Rules , 1953 and considering the arbitrariness in the order of Deputy Commissioner, interfered by passing order dated 22.6.2010 thereby granting the settlement of Meen Mahal for a

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period of 7 (seven) years lease to the petitioner. Subsequent thereto, the act of Deputy Commissioner to send the matter to the Govt. of Assam, Fishery Department is not called for and even if the matter has been referred to the Fishery Department, a duty was cast upon the responsible department at least to dispose of the reference made by the Deputy Commissioner, Sonitpur in favour of the petitioner inasmuch the order passed by the Commissioner, North Assam Division was a speaking order wherein the reason for settling the Meen Mahal in favour of the petitioner was discussed. Non taking action by the respondent State has affected the petitioner badly and as such learned counsel sought for a direction from this Court to dispose of the said reference made by the Deputy Commissioner, Sonitput at the earliest.

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Mr.Goswami learned Additional Advocate General, Assam opposed the said prayer of the learned counsels of the petitioner on the ground that if such a direction is passed by this Court, as sought for by the petitioner, the same would cause a huge loss to the State exchequer inasmuch as the rate quoted by the petitioner dates back to the year of 2006 and after almost 11 years the same rate cannot be accepted. The second limb of contention of the learned Additional Advocate General is that admittedly, the act/acts on the part of the Respondent State and its officials are not transparent. More so the act of the Deputy Commissioner, Biswanath District calling for settlement of such Meen Mahal without going through the tender process. It is submitted that the petitioner if at all aggrieved by the order passed by the Deputy Commissioner settling the Meen Mahal to the second highest bidder he ought to have preferred the appeal in the stipulated forum under the Rules which is the Assam Board of Revenue and that too within a period of 30 days from the passing of the order on the basis of which the petitioner was aggrieved. Instead of going to the appropriate forum, the petitioner had approached the Commissioner, North Assam Division who is not the competent authority to deal with the matter, as per the Rules inasmuch the Commissioner is not the appellate authority as stipulated under the Fishery Rules. Under such a situation, Mr.Goswami submits in favour of cancellation of the Memo dated 21.08.2017 issued by the Deputy Commissioner, Biswanath District for direct settlement of the Meen Mahal and thereafter a fresh tender be called, for settlement of 40% Biswanath Brahmaputra and Baghmara Meen Mahal

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under the jurisdiction of Deputy Commissioner, Biswanath District. In support of his contention, Mr.Goswami referred to the order dated 8.11.2017 passed in WP(C) No. 5682/2017 wherein after observing by this Court that as the temporary settlement in favour of the settlement holder had already ended in March, 2017, the authorities were directed to arrange for regular settlement of the aforesaid 40% Biswanath Brahmaputra and Baghmara Meen Mahal and the said settlement must be held in accordance with the Assam Fishery Rules.

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Mr.A.Das supported the submissions put forward by the learned Additional Advocate General.

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Considered the submission of the learned counsels. As an order had already passed by this Court in WP(C) No. 5682/2017 to arrange for regular settlement of the aforesaid Meen Mahal, there is no point in further giving time to the Government for disposal of the reference made by the Deputy Commissioner on 22.7.2010 by the then Deputy Commissioner, Sonitpu. Accordingly, in terms of the earlier order passed in WP(C) No. 5682/2017, the Deputy Commissioner, Biswanath District is directed to settle the said 40% Biswanath Brahmaputra and Baghmara Meen Mahal by way of regular settlement in accordance with Assam Fishery Rules by inviting tender and the said process be completed within a period of two months from the receipt of the copy of this order and I am satisfied to set aside the notice issued under Memo No.BNF. 32/2016/104(A) dtd. 21.8.2017 inviting application for direct settlement of said Meen Mahal issued by Additional Deputy Commissioner(Revenue), Biswanath.These writ petitions are disposed of accordingly.

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Interim orders passed earlier stands vacated.

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JUDGE

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Comparing Assistant

Monoj Kr. Shahni v. the State of Assam and 7 Ors.

Case brief

What is this about?

What did the court decide?

Monoj Kr. Shahni v. the State of Assam and 7 Ors.

Case brief

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