The Court set aside an impugned order by the Settlement Officer that divided 2nd Class Fishery Mahals among the petitioner and respondents, finding the order arbitrary because it ignored the respondents' violation of established permission terms and conditions.
Impugned order dated 29.06.2020 passed by the Settlement Officer was set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010153382020
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4634/2020
MD. MASIUR RAHMAN
S/O- LT. JAIN UDDIN, VILL- BEHARA PART-VI, P.O. HILARA, P.S. KATIGORAH, DIST.- CACHAR, ASSAM, PIN- 788805
VERSUS
THE STATE OF ASSAM AND 7 ORS REP. BY THE COMM. AND SECY. GOVT. OF ASSAM, DEPTT. OF REVENUE, DISPUR, GHY-6
2:THE COMM. AND SECY. GOVT. OF ASSAM DEPTT. OF FISHERY DISPUR GHY-6
3:THE DY. COMMISSIONER CACHAR ASSAM
4:THE SETTLEMENT OFFICER CACHAR AND HAILAKANDI DISTRICT SILCHAR CACHAR
5:THE ASSTT. SETTLEMENT OFFICER KATIGORAH REVENUE CIRCLE KATIGORAH DIST.- CACHAR ASSAM
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CACHAR SILCHAR ASSAM 7:ABDUL HANNAN BARBHUIYA S/O- LT. KHALILUR RAHMAN BARBHUIYA VILL- NOON NAGAR P.O. KATIGORAH P.S. KATIGORAH DIST.- CACHAR ASSAM 8:NURUAL HAQUE BARBHUIYA S/O- LT. ABDUL SATTAR BARBHUIYA VILL- NOON NAGAR P.O. KATIGORAH P.S. KATIGORAH DIST.- CACHAR ASSA
Advocate for the Petitioner : Mr. I. Alam, Advocate Mr. T. Sk., Advocate Advocate for the Respondents : Mrs. U. Das, Addl. Sr. Govt. Advocate Mrs. R. Choudhury, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 04.01.2024 Date of Judgment : 04.01.2024
JUDGMENT AND ORDER (ORAL)
Heard Mr. I. Alam, the learned counsel for the petitioner and Mrs. U. Das, the learned Additional Senior Government Advocate, Assam appearing on behalf of the respondent Nos.1 to 6. Also heard Mrs. R. Choudhury, the learned counsel appearing on behalf of the respondent Nos.7 & 8.
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“ (a) The petitioner shall abide by the Rules and Regulation of 2nd class fishery and any violation of 2nd class fishery Rule the permission will be rejected at any time.
(b) The permission holder shall pay annual Revenue of Rs. 700/- to the Tahsil and produce challan to the Settlement Officer through Asstt. Settlement Officer, Katigorah.
(c) The permission is to be renewed in every year on the prayer petition along with Revenue deposit challan and fresh assessment report to be submitted by the ASO Katigorah.
(d) The permission holder shall not disturb any way the usual uses as has been in practice such as utilization for cattle, irrigation, drinking and other essential facilities required to be derived from by the locality.”
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and as such the Government revenue would be 10% yearly and their residence was within 1 km of the respective Mahals. Pursuant thereto, the respondent No.5, vide an nd order dated 21.06.2019 included the names of the petitioner along with others in the 2 Class Fishery Mahal Nos.8, 9 & 10 of Mouza - Mohanpur Part I, Porgona Katigorah of Cachar District.
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challan enclosed with their petition. It was mentioned that the newly permitted persons who were included vide the order dated 21.06.2019 were fishermen by community and nd fishing by profession. Their names were proposed for inclusion in the 2 Class Fishery as representatives on realization of the Government revenue as per the current assessment rate of Rs.5,250/-, and accordingly, the letter was issued to include their n d names in the fishery Mahal as representatives in the 2 Class Fishery Register. Pursuant to the said report being submitted on 04.12.2019 by the respondent No.5, the impugned n d order was passed on 29.06.2020 whereby the respondent No.4 divided the 2 Class Fishery amongst the petitioner as well as the respondent Nos.7 & 8. As per the n d impugned order, the respondent No.7 was made the representative of the 2 Class n d Fishery Mahal No.9; the respondent No.8 was made representative of the 2 Class Fishery Mahal No.8 and the petitioner along with others were made representatives of n d Mahal No.10 of the 2 Class Fishery. It is against the said impugned order dated 29.06.2020 that the petitioner has approached this Court.
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n d Officer on the basis of the annual income from the 2 Class Fishery Mahal. It was n d further mentioned that the settlement of the 2 Class Fishery in the Cachar district are made on the basis of proposal for selection of candidates after field enquiry as well as assessment report of the annual revenue by the Assistant Settlement Officer of the concerned Revenue Circle. In paragraph No.7 of the said affidavit-in-opposition, the respondent No.5 has stated the terms on the basis of which the Settlement Officer may reselect/select the representative by passing an order as well as fix the annual revenue of the said fishery. Taking into account its relevance, the paragraph No.7 is reproduced herein under:-
“ 7. That the deponent begs to state that the Settlement officer may re-settled /select the representative by passing an order as well as fixed the Annual Revenue of the said fishery on the basis of following terms and conditions.
a) The representative shall abide by the Rules and Regulations of 2" class fishery and any violation of the said Rules the permission will be rejected at any time.
b) The permission holder shall pay Annual Revenue as fixed, to the tahsil and produce challan to the Settlement Officer through concerned Assistant Settlement Officer.
c) The permission is to be renewed in every year on the prayer petition alongwith Revenue deposit challan and fresh assessment report to be submitted by the concerned Assistant Settlement Officer.
(d) The permission holder shall not disturb any way the usual uses as has been in practice such as utilization for cattle, irrigation, drinking and other essential facilities required to be derived from by the locality.”
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by the present Respondent Nos. 7 & 8 as the legal heirs of late Chandu Mia along with n d his other legal heirs. It was also mentioned that the three fisheries which are 2 Class Fisheries were settled with the predecessors of the Respondent Nos. 7 & 8 and they were paying the annual rent as fixed by the competent authorities from time to time. At this stage it may however be relevant to mention that the documents enclosed to the writ petition do not show payment of any revenue beyond 2002.
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order of this Court reference to which was made in the impugned order dated 29.06.2020. The said order has been enclosed as Annexure-2 to the writ petition. From a perusal of the said order dated 24.04.2002 passed in WP(C) No.7659/2001, it reveals that this Court had directed the Settlement Officer, Cachar and Hailakandi District, i.e. the respondent No.4 in the year 2002 to examine the representation submitted by the respondent Nos.7 & 8, and thereupon, grant the necessary permission. The said order do not in any manner direct granting of settlement in favour of the respondent Nos.7 & 8 but only directed examination. Further to that, even assuming that the order had directed that the respondent Nos.7 & 8 be granted the permission, then also such permission has to be understood to be subject to the terms and conditions of the permission, which admittedly have been violated by the respondent Nos.7 & 8. Under such circumstances, in the opinion of this Court, the impugned order dated 29.06.2020 suffers from gross arbitrariness, unreasonableness as well as appears to have been infected with abuse of the powers conferred upon the authorities. For the said reasons, assigned above, this Court therefore sets aside the impugned order dated 29.06.2020 passed by the respondent No.4.
10. It is however made clear that setting aside of the impugned order dated 29.06.2020 would not debar the respondent authorities to take such other decisions in respect to the Mahals in question, if otherwise permissible under law.
11. In view of the above direction and observation, the instant writ petition stands disposed of.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the impugned order dividing 2nd Class Fishery Mahals was arbitrary and unreasonable?
Whether the respondents' violation of permission terms absolved them from eligibility for fishery settlement?
Colour shows how this judgement treated each authority
WP(C) No.7659/2001Referred¶49
MD. MASIUR RAHMAN
THE STATE OF ASSAM
THE COMM. AND SECY. GOVT. OF ASSAM DEPTT. OF REVENUE
THE COMM. AND SECY. GOVT. OF ASSAM DEPTT. OF FISHERY
THE DY. COMMISSIONER CACHAR ASSAM
THE SETTLEMENT OFFICER CACHAR AND HAILAKANDI DISTRICT SILCHAR CACHAR
Devashis Baruah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
