WP(C) 3087/2010 BEFORE THE HON’BLE MR. JUSTICE BK SHARMA JUDGEMENT AND ORDER The challenge in this writ petition is the Annexure-K order date d 14.12.2009, by which the fishery namely Subansiri Reserve Fishery Mahal was se ttled with the respondent No. 6 pursuant to the Annexure-J Re-sale notice dated 14.7.2009. The Re-sale notice and the settlement order both had been issued by t he Divisional Forest Officer, Dhemaji Division, Dhemaji. 2. The petitioner is the settlement holder of No. 7 Bhati Subansiri Meen Ma hal Fishery under North Lakhimpur Sub-division, which was settled with him by An nexure-B order dated 2.2.2009. Such settlement is for a period of 7 years with e ffect from the date of delivery of possession of the fishery. The settlement was made in favour of the petitioner pursuant to the sale notice dated 11.7.2008 (A nnexure-A) issued by the Deputy Commissioner, North Lakhimpur, Lakhimpur. Accord ing to the petitioner after handing over of the fishery to him, he made Annexure -H representation dated 10.8.2009 to the respondent No. 3 i.e. the Commissioner & Secretary, Fishery Department for demarcation of the boundary of the fishery. According to him, although he was settled with the fishery covering 75 KM, but i n fact he got possession of 13.5 KM only. 3. It has been stated in the writ petition that the petitioner had occasion to lodge Annexure-I series complaints when the petitioner found some unknown pe rson led by the respondent No. 6 caused interference in operating the fishery by the petitioner by threatening its members. When an enquiry was made, it was fou nd that the respondent No. 6 was settled with the Subansiri Reserve Fishery Maha l by the aforesaid impugned Annexure-K order of settlement dated 14.12.2009, whi ch was preceded by Annexure-J Re-sale notice dated 14.7.2009. Both issued by the Divisional Forest Officer, Dhemaji Division, Dhemaji. 4. Referring to the provisions of Assam Fishery Rules, 1953 and Assam Sale of Forest Produce Coupes and Mahal Rules, 1977 in reference to the provisions of Assam Land Revenue Regulations 1886, it is the stand of the petitioner that the particular fishery could not have been settled with the respondent No. 6 and th at such settlement made in favour of the respondent No. 6 by the Forest Departme nt has led to violation of the provisions of Assam Fishery Rules, 1953 and that such settlement has intruded upon the right of the petitioner to operate the fis hery settled with him in full. 5. The writ petition was entertained by order dated 2.6.2010 and an interim order was passed suspending the impugned order of settlement dated 14.12.2009 m ade in favour of the respondent No. 6. This interim order was passed after nearl y 6 months of the impugned order of settlement, seeking vacation of which the re spondent No. 6 has filed Misc. Case No. 2023/2010. 6. In the said application for vacating stay, the respondent No. 6 has stat ed about the settlement made in his favour. According to him, the Forest Departm ent having settled the fishery in his favour as per the provisions of Assam Sale of Forest Produce Coupes and Mahals Rules, 1977 and the fishery being distinct and different from the one settled with the petitioner, the petitioner cannot ta ke the plea that by virtue of settlement of the fishery to him by the Fishery De partment, he is entitled to intrude upon the fishery settled with the respondent No. 6. 7. When the Misc. Case No. 2023/2010 was taken up for hearing, it was agree d by the learned counsel for the parties that the matter requires final disposal and accordingly the writ petition itself was taken up for hearing. Noticing the conflict between the two Departments of the Government of Assam, a direction wa s issued to clarify their respective position and accordingly by order dated 5.5 .2011 both the departments i.e. Fishery and Forest were directed to file individ ual affidavit clarifying their stand. 8. Pursuant to the aforesaid order, both the departments have filed their a ffidavit. In the affidavit filed by the Fishery Department, it has been stated t hat No. 7 Bhati Subansiri Meen Mahal is under the administrative control of the Fishery Department and on the basis of the tender process, the Government in the Fishery Department had settled the fishery with the petitioner for a period of 7 years by Annexure-B order dated 2.2.2009. According to this affidavit, the For est Department has given the impugned settlement in favour of the respondent No. 6 without any authority. 9. As against the aforesaid plea of the Fishery Department, the Forest Depa rtment in its affidavit filed on 13.5.2011 has stated that the fishery in questi on was settled with the respondent NO. 6 as per provisions of the aforesaid Rule s of 1977. It has also been stated that the fishery has all along been settled b y the Forest Department since 1998 and the present term of the respondent No. 6 is for the period from 2009 to 2011. During the course of argument, it was submi tted by the learned counsel for the respondent No. 6 that the settlement period would be over in December, 2011. 10. In the affidavit filed by the Forest Department, it has further referred to the provisions of Assam Forest Regulation, 1891 so as to contend that the Fo rest Department is empowered to make settlement of the fishery within its jurisd iction, more particularly, when the Subansiri Reserve Fishery Mahal is located w ell inside the notified Subansiri Reserve Forest under the Divisional Forest Off icer, Subansiri Reserve Forest in the district of Dhemaji. In this connection, t he affidavit has referred to the notification issued by the Government of Assam way back in 1927 (14.12.1927). 11. I have heard Mr. I. Choudhury, learned counsel for the petitioner as wel ls as Mr. D. Chakraborty, learned counsel for the respondent No. 6. I have also heard Ms. R. Chakraborty, learned Additional Sr. Govt. Advocate, Assam. 12. Mr. Choudhury, learned counsel for the petitioner, during the course of his argument has referred to the provisions of Section 16 and 155 of the Assam L and and Revenue Regulation, 1886. For a ready reference, the said provisions are quoted below: 16.The Deputy Commissioner, with the previous sanction of the State Government, may be proclamation published in the prescribed manner, declare any collection of water, running or still, to be a fishery; and no right in any fishery so decl ared shall be dismed to have been acquired by any person, either before or after the commencement of this Regulation, except as provided in the rules made under Section 155. Provided that nothing in this section shall affect any express grant of a eight to fish made by or on behalf of the Government or any fishery rights acquired by a proprietor before the commencement of this Regulation, or the acquisition by a proprietor of such rights in any fishery forming after the commencement of thi s Regulation in his estate. 155. The State Government may, in addition to the other matters for which they are empowered by the Regulation to make rules, make rules consistent with this R egulation relating to the following matters:- (a) the person by whom, and the time, place, and manner at or in which, anyt hing is to be done, for the doing of which provision is made in this Regulation or the rules made thereunder; (b) the mode in which notices, proclamations, summonses warrants and other p rocesses issued under this Regulation shall be issued, published, and served and the fees to be charged for the issue, publication and service of such processes ; (c) the costs of all proceedings under this Regulation; (d) the matter in which representatives shall be appointed to act in matter relative to this Regulation on behalf of any body of settlement holders or perso ns entitled to, or with whim it may be desirable to make, a settlement; (e) the granting of licenses to prepare or collect or the farming of the rig ht of preparing or collecting, rubber, lac and other forest produce upon land ov er which no person has the rights of a proprietor, land holder, or settlement ho lder; (f) the granting of licenses, or the farming of the right, to work mines, st one and lime queries, salt-wells and oil-wells, to fish in fisheries proclaimed under Section 16 and to carry on gold washing operating; (g) the payments in consideration of which, and the conditions on which, suc h licenses or farms may be granted; and (h) generally to carry out the provisions of this Regulation . 13. Referring to the aforesaid provisions, Mr. Choudhury, learned counsel fo r the petitioner argued that the Government in the Fishery Department alone is e mpowered to make settlements of fishery irrespective of locality of the said fis hery and as to whether the said fishery is within the forest area including rese rve forest. In this connection he has more particularly referred to Section 155 (f). 14. On the other hand, Mr. Chakraborty, learned counsel for the respondent N o. 6 by referring to the provisions of Assam Forest Regulation, 1891 submitted t hat as per the said provision, the Forest Department is empowered to settle the fishery located within its jurisdiction. In this connection he has referred to S ection 3, 9 and 25. Mr. Chakraborty by referring to definition forest produce under Section 3 (4) submitted that such forest produce will also included fisher y. In this connection he also referred to Section 3 (7) defining the term river 15. Mr. Choudhury, learned counsel for the petitioner placed reliance on the Division Bench decision of this court reported in (1985) 1 GLR 496 (Shri Jagann ath Choudhury Vs. State of Assam), in which, in paragraph 5 and 6, it was observ ed thus: 5. We have our own doubt as to whether fish is a forest produce notwithstan ding the fact that the definition of forest produce is an inclusive one. In Di visional Forest Officer vs. Mool Chand Saraugi Jain AIR 1971 SC 694, their Lords hips of the Supreme Court held that stone is not a forest produce. Following the aforesaid decision of the Supreme Court, this Court also held in Bejiram Ingty vs. The State of Assam (1981) I Gauhati Law Reports 222, that forest produce d oes not include stone. For the reasons set firth in those decisions, we are of t he tentative view that fish is not a forest produce contemplated under the provi sions of the Assam Forest Regulation and the Rules. 6. We have every reasons to doubt whether the provisions of the Rules are appl icable to fishery settlement. However, when both the parties acted under the imp ression that the Rules wee applicable to the settlement of fishery we do not pro pose to decide the question as to whether the provisions of the Settlement Rule s, 1977 govern settlement of fisheries. Be that as it may, we are of the opinio n that the provisions of Rule 21 of the Rules are not applicable to the present case. Even if fish may be somehow brought within definition of the expression forest produce Fishery cannot be a mahal nor a Coupe as defined und he Rules. Under Rule 21 of the Rules the period of settlement of mahals and coupes only can be extended. The Rule does not apply to any other class or cate gory of settlement. However, we also pass over the point as the petitioner has n ot taken up the point in the writ petition. 16. On the other hand, Mr. Chakraborty, learned counsel for the respondent N o. 6 has placed reliance on the decision reported in AIR 1981 Allahabad 205 (Sta te of U.P. Vs. District Judge, Bijnor) so as to emphasis that fishery being a fo rest produce, the fishery within the forest area including reserved forest can o nly be settled by the Forest Department. He has also placed reliance on the deci sion reported in (1996) 5 SCC 194 (State of U.P. Vs. Dy. Director of Consolidati on) to emphasis that the Forest Settlement Officer has the power of a Civil Cour t for declaring and notifying a reserved forest so as to contend that upon decla ring and notifying of land as reserved forest, all the rights in the said land c laimed by any person come to an end and would be no longer available. 17. In Jagannath Choudhury (supra) the issue as to whether the fishery is a forest produce within the meaning of the provisions of Assam Forest Regulation 1 891 was not conclusively decided. Similarly, whether the term fishery would co me within the definition of forest produce was also not decided. However, certai n observations regarding applicability of the said Regulation have been made. On the other hand in District Judge, Bijnor (supra), the Allahabad High Court, it has been held that no person can carry on fishing within the reserved forest are a unless the same is permitted by the Forest Settlement Officer or by the State Government in accordance with the provisions of the Act. It has been observed th at fish is produced in water channels, ponds and lakes by natural process. If su ch water channels, ponds or lakes or rivers fall within the area of the reserved forest, any fishing in such water channels lakes or ponds would naturally be su bject to the effect of a notification issued under Section 20 of the Act. The de finition of forest produce as indicated in the judgment, is more or less in tune with the definition of forest produce finds mention in the Assam Forest Regulat ion, 1891. 18. Apart from the above, the petitioner was settled with the fishery called No. 7 Bhati Subansiri Meen Mahal falling in the district of Lakhimpur by Annexu re-B order dated 2.2.2009. On the other hand, the respondent No. 6 was settled w ith the fishery called Subansiri Reserved Fishery Mahal falling in the district of Dhemaji by the Divisional Forest Officer, Dhemaji Division, Dhemaji. Admitted ly they are two distinct and different fisheries. However, the petitioner by vir tue of the settlement made in his favour claims operation of the fishery even to the extent of the area of operation of the fishery that has been settled with t he respondent No. 6. 19. The settlement made in favour of the respondent No. 6 on 14.12.2009 came under challenge through the writ petition filed after 6 months thereafter durin g which the respondent No. 6 operated the fishery settled with him by the Forest Department. Both the settlements i.e. one settled with the petitioner and the o ne settled with the respondent No. 6 were through two different processes initia ted and completed by two different departments of the Government of Assam i.e. F ishery Department and Forest Department. 20. As noted above, both the departments have claimed their respective right s over the fisheries. While the Fishery Department has claimed its right over th e fishery in question, the Forest Department has claimed its right by virtue of the aforesaid regulation including the provisions of the Forest Act. In this con nection it has also been brought in record that the Subansiri Reserve Fishery Ma hal is located well inside the notified Subansiri Reserve Forest under Dhemaji F orest Division, as per the notification issued way back in the year 1927 (14.12. 1927) 21. In view of the conflicting claim by two different departments of the Gov ernment of Assam, I am of the considered opinion that the matter is required to be resolved by the Government of Assam upon hearing both the departments and oth er authorities of the related department (s), whose views might be required to b e taken to resolve the issue. Accordingly the matter is sent to the Chief Secret ary, Government of Assam, who in turn may conclusively decide the issue upon hea ring all the authorities towards resolving the dispute. Let the dispute be resol ved by passing a speaking order and as expeditiously as possible, preferably wit hin 4 months. 22. This now leads us to the question as to who will run the Subansiri Reser ve Fishery in the interregnum till the dispute is resolved. As noted above, the respondent No. 6 was settled with the fishery by Annexure-K order dated 14.12.20 09. Such settlement was made pursuant to the Annexure-J sale notice dated 14.7.2 009. The petitioner never challenged the sale notice dated 14.7.2009. It is only after the settlement made in favour of the respondent No. 6 by the impugned ord er dated 14.12.2009 and that too after expiry of more than 6 months the petition er made the challenge to the same. This was after the Annexure-B order of settle ment dated 2.2.2009 of the fishery called No. 7 Bhati Subansiri Meen Mahal made in his favour. As per the own admission of the petitioner in paragraph 6 of the writ petition, he was given possession of 13.5 KM and not entire 75 KM. Coupled with this, the fishery that has been settled with the respondent No. 6 is all al ong under the settlement of the Forest Department since 1998. Moreover, the sett lement would expire in December, 2011. On the other hand the petitioner has been settled with the other fishery by the Fishery Department for a period of 7 year s. 23. Considering all the above, I am of the view that the interim order passe d on 2.2.2010 requires to be vacated which I accordingly do. The respondent No. 6 be allowed to run the fishery as per settlement made in his favour till his te rm expires. In the meantime, the Chief Secretary shall resolve the issue in term s of the direction contained in this judgment and order. Future settlement of th e fishery will be based on the outcome of the order to be passed by the Chief Se cretary. 24. Writ petition is disposed of, without, however, any order as to cost.