WP(C) 3013/2011 BEFORE HON’BLE MR. JUSTICE S. TALAPATRA These two writ petitions are tied up together for disposal by a common judgment and order inasmuch as both the writ petitions are set up on almost identical fac ts with a little variation such as in W.P.(C) No.3013/2011, a notice of sale by the impugned NIT under No.DTN/44-2010, dated 03.06.2011 (Annexure-T to the writ petition) has been put under challenge as the said NIT was issued subsequent to filing of W.P.(C) No.1915/2011. 2. The petitioner is a registered co-operative society formed of me mbers from a community, which is recognised as Scheduled Castes in the State of Assam. The said society is dedicated to address the occupational bottleneck of i ts members, whose main stay is fishing. The Government of Assam, under Rule 12 o f the Assam Fishery Rules,1953, settled the No.1 Karha Part-II Fishery with the society for a period of seven years from 04.03.2004 to 03.03.2011 on payment of 10% enhanced rate of the Government revenue over the existing rate. 3. The grievance of the petitioner in W.P.(C) No.1915/2011 was that , although the said fishery was settled by order dated 10.03.2004 (Annexure-A to the writ petition), the substantial part of the fishery area was not handed ove r to them till 22.12.2009. The subsequent handing over was made in compliance to the judgment and order dated 18.12.2009 (Annexure-G to the writ petition), as p assed in W.P.(C) No.5189/2006 by this Court. The operative part of the said judg ment is usefully extracted hereunder : 12. For the aforesaid reasons, the impugned order dated 01.09.2006 for retainin g the original boundary of Karha Fishery Part-I as per the Government Order vide No.FISH/127/94/PT/193 dated 23.11.2000 and also the impugned order of the Circl e Officer, Subansiri Revenue Circle dated 18.09.2006 for modifying the boundarie s of Karha Fishery Part-I, are hereby set aside. In the result, the said orders of the Deputy Commissioner, Dhemaji dated 26.10.2005 and 28.11.2005 shall remain operative. 4. By the order dated 22.09.2009 (Annexure-B to the writ petition), the possession of the entire settled fishery area as per the new boundary of Ka rha Fishery Part-II had been handed over to the petitioner. As a result of such delayed handing over of the settled fishery area, the petitioner did not make an y use of that fishery area till 22.12.2009 even though the settlement took its e ffect from 04.03.2004. Hardly a year was left for use of that settlement area. T he petitioner admittedly suffered substantial loss having been deprived of using the entire settlement area. 5. The petitioner had approached this Court earlier seeking remissi on of the revenue for the loss they suffered for the drought-like situation and the sedimentation caused by the river Giyadhal and Kumatiya, raising the river b ed of Karha in several places. However, subsequent to filing of the said writ pe tition being W.P.(C) No.3677/2007, the State-respondents had granted the remissi on as prayed for and consequent thereupon the said writ petition had become infr uctuous and was disposed of by the order dated 20.12.2011. The petitioner conten ds that the major part measuring a fishery area of 5 kms. was not handed over to the petitioner till 22.12.2009 even though the petitioner had been paying the G overnment revenue for the entire fishery area since 04.03.2004. On 12.07.2010, t he petitioner had submitted a representation to the respondent No.1 (Annexure-H to the writ petition), praying for grant of extension of term of the fishery fo r a further period of five years as a measure for making good of the loss they h ad suffered for not handing over the possession of the entire fishery area. Para -2 of the said representation dated 12.07.2010 may be reproduced for appreciatio n : Unfortunately, we could not get possession of half of the fishery at the time o f settlement. To this effect a case was filed before the Hon’ble Gauhati High Co urt and the Hon’ble Court was pleased to dispose of the matter vide order dated 18.12.2009. The Hon’ble Court vide order passed in W.P.(C) No.5189/2006 was plea sed to direct the department to settle the boundary and accordingly the Circle o fficer, Subansiri revenue Circle vide order dated 22.12.2009 handed over the pos session of the entire fishery top the applicant. The applicant was deprived from operating the half of the min mahal almost for 6 years. 6. Since the respondent No.1 was not responding to the said represe ntation dated 12.07.2010, another representation was filed by the petitioner on 10.01.2011 for the same purpose. From an inter-departmental communication dated 16.12.2010 as authored by the Sub-Divisional Officer (Civil), Dhakuakhana, it e vinces that the State-respondents have admitted that at the time of settlement, the society had not got possession of the entire part of the mahal. A major part of the mahal measuring a fishing area of 5 kms. could not be handed over to the society as the fishery was not properly partitioned at that time. After a long period in judicial process the entire part of the fishery had been handed over t o the society on 27.12.2009 as per this Court’s order (Annexure P to the writ pe tition). Despite such report from a competent authority, the State-respondents p assed the impugned order dated 09.03.2011 (Annexure-A to the affidavit-in-opposi tion filed by the respondent No.1), whereunder the prayer for extension of lease term of the fishery area in question was rejected on the ground as follows : It may be stated here that the lessee society has submitted another proposal be fore Government for remission of revenue of the said fishery, which is under con sideration in this Department. 7. Learned counsel for the petitioner, taking me to the inter-depar tmental communication dated 16.12.2010 (Annexure-P to the writ petition), had co ntended that the remission under Rule 16 of the Assam Fishery Rules,1953 was gra nted for the following reasons : 2. At the time of settlement the society had not got possession of the enti re part of the Mahal. A major part of the Mahal measuring a fishing area of 5 K. M. could not be handed over to the society as the fishery was not properly parti tioned at that time. After a long period in Judicial process the entire part of the fishery has been handed over to the society on 27/12/2009 as per Hon’ble Hig h Court’s order. 3. Karha Part-II fishery is running water fishery. The most parts of the ri ver has been silted by floods occurred since 1996. The river bed has been raised in several places due to sedimentation caused by river Kumatia and Jiadhal whic h remarkably diminishing the production of fish. 4. During the period of this settlement 2 RCC bridges have been constructed over the river for which the river bed is raised in some places and the water h as been polluted causing effect in production of fish. 5. Also drought like situation was prevailed in the area of the fishery dur ing the year of 2006-07 which decreased production in the fishery. 6. In the midst of the settlement, the society was dissolved twice by the o rder of the Registrar of Coop. Societies, Assam depriving them from fishing for which the society had to approach the Hon’ble court for restoration. 7. Under such situations the society could not operate the fishery Mahal re gularly and peacefully for which it has to sustain a severe financial loss. Acco rding to the report of the Assistant Registrar of Coop. Societies, Dhakuakhana, during the period of 2004-05 to 2009-10 the Society has to face a total loss of Rs.7,38,335.00 only. Though the loss was estimated at Rs.7,38,335/- but the said sum was not awarded as the remission. On subsequent consideration, the original grou nds for grant of remission was re-considered and para(2) above was discarded. It would be evident from the statement of the fishery revenue by the petitioner an d proposal for granting remission as appended with the communication dated 16.12 .2010 (Annexure-P to the writ petition). The reason for grant of remission to t he extent of Rs.4,15,980/- was siltetion, settlement with ad-hoc body and drough t. The delay in handing over the entire fishing area was not considered while aw arding the remission. For demonstration, the said chart is extracted hereunder : Statement of Fishery Revenue paid by the current lessee i.e. Parghat Koibarta M in Silpa Samabai Samitee Ltd. And proposal for granting remission thereof. Year Due Revenue Rev. Deposit Challan/Receipt No. Balance Reason f or remission Remission Remarks 2004-05 207989.00 Rs.18399/- Rs.51997/- Rs.13693/- 1839833 289 dt. 15/12/2004 295 dt. 17/1/2005 123900/- Siltetion 20% 41598/- 2005-06 207989.00 Rs.51998/- Rs.51998/- Rs.90301/- Rs.13693/- Rs .52000/- 1 dt. 1/9/2005 1839842 dt.17/1/06 Adjusted vide order No.DRF1/20 01 dtd. 1/3/2006 621 dt.16/2/2006 (A) 1839843 dtd.27/1/2006 Exceed deposit R s.52001/- Siltetion and settlement with adhoc body 40% 83196/- 2006-07 207989.00 Nil Adjusted the amount of exceed deposit of Rs.52,0 00/- deposited for 2006-07 1555988/- Drought 50% 1039995/- 2007-08 207989.00 Rs.52000/- Rs.50000/- Rs.60,000/- 2008/7/04083 Dtd .22/7/2008 2009/2/00677 Dt.3/2/2009 2008/2/04116 dt.29/2/2008 45989/- Siltetio n and settlement with adhoc body 50% 103995/- 2008-09 207989.00 Nil 207989/- Siltetion 20% 41598/- 2009-10 207989.00 Rs.50000/- Rs.50000/- 1 dt.4/1/2010 2010/02/00033 Dt.1 /2/2010 107989/- Siltetion 20% 41598/- 2010-11 207989.00 100000/- 1 dtd.14/12/2010 107989 Due in c urrent year No remission Total 1455923.00 706079/- 749844/- 415980/- Sd/- Illegible Sub-Divisional Officer (Civil) Dhakuakhana. 8. The petitioner has admitted of receipt of the remission to the e xtent of Rs.4,15,980/- but the learned counsel for the petitioner emphatically s ubmitted that the ground as assigned in the impugned order of rejecting the pray er for extension of tenure of the lease cannot be sustained as delayed handing o f the major part of the fishery area was not at all the component of the remissi on as granted under Rule 16 of the Assam Fishery Rules,1953. 9. Learned Govt. Advocate appearing for the State-respondents while countering the submissions as advanced by the learned counsel for the petitione r, heavily relied on paragraph-6 of the affidavit-in-opposition as filed in W.P. (C) No.1915/2011, where it has been asserted that after receipt of this Court’s order dated 16.03.2011, as passed W.P.(C) No.1589/2011 and after careful examina tion of the entire fact and all required information including the report obtain ed from the Sub-Divisional Officer (C) Dhakuakhana, dated 26.03.2011, the order dated 29.03.2011 was issued rejecting the claim for extension of lease term of t he fishery with copies to all concerned. The SDO(C), Dhakuakhana was requested t o initiate a fresh process for settlement of the Fishery in due course of time. He would further contend that the petitioner was to pay an amount of Rs.7,01,856 /- as the revenue of the fishery as per the terms of lease. When confronted by t his Court, he admitted that after the remission was granted, the society had cle ared all the outstanding revenue. It was strongly contended by the learned Govt. Advocate that for the petitioner’s default in paying the said revenue in time h is prayer for extension of the lease term was not considered. From the records a s produced it is found that the respondent No.1 had directed the Sub-Divisional Officer (Civil), Dhakuakhana to initiate a fresh process for settlement of the f ishery. Learned counsel for the petitioner submitted with much emphasis that the State-respondents have failed to discharge their statutory obligation as provid ed in Rule 8(b) of the Assam Fishery Rules,1953, which stipulates : 8. (b) Extension of the term of lease.- (i) Where &. the period of lease of reg istered fisheries being ordinarily not less than three years is interfered with, due to any natural clause or for any unavoidable reasons beyond the control of the lessees, Government may extend the period of such lease supported by officia l reports as to the nature of cause in exceptionally special cases for a reasona ble period so as to enable such lessees to make good the loss. 10. On relying on that provision of the Assam Fishery Rules,1953, le arned counsel for the petitioner would contend that the lease of the petitioner was for more than three years and the same was interfered with unavoidable reaso ns beyond the control of the lessee, the petitioner, as the State-respondents di d not hand over the major part of the settled fishery area till 22.12.2009 and i n handing over, the petitioner had no control. What at best they could do, they had done by approaching this Court, which in turn directed the State-respondents by order dated 18.12.2009 in W.P.(C) No.5189/2006. The State-respondents have a lso not disputed the fact that the petitioner suffered huge loss for the delayed handing over as stated. Finally, the learned counsel for the petitioner would c ontend that the State-respondents were under obligation to extend the tenure of the lease for a reasonable period so as to enable the petitioner to make good of that loss as the petitioner had made out an exceptionally special case supporte d by the official reports and records. Therefore, the order of rejection is liab le to be interfered with. 11. I have given anxious consideration of the rival contentions and hold that no remission under Rule 16 of the Assam Fishery Rules,1953, was awarde d in favour of the petitioner for delayed handing over of the major part of the settled fishery area and the claim of extension under Rule 8(b) of the said Fish ery Rules cannot be eclipsed by operation of non-obstante clause contained in Ru le 16 of the Assam Fishery Rules. Apart that, default in payment of the Governme nt revenue was never considered for obvious reasons as the ground for rejection of extension of lease while the impugned order dated 09.03.2011 was passed. Ther efore, the ground of default in making payment as has been raised for the first time in this case has to be discarded. Since no remission was awarded for delaye d handing over of the possession of the major part of the settled fishery area a nd the respondents did not take any action by enabling the petitioner to make go od the loss as they suffered for an unavoidable reason beyond their control, the State-respondents were under obligation to consider the claim of the petitioner under Rule 8(b) of the Assam Fishery Rules,1953 for extension of the period of lease to enable the petitioner to make good the loss as the petitioner has made out an exceptional special case supported by the official reports and records fo r such consideration. The State-respondents have failed to rise to that occasion and thereby caused serious injustice by rejecting the prayer for extension arbi trarily. 12. In view of the above finding the impugned order as issued under No.DTN/44-2010, dated 03.06.2011 (Annexure-A to the affidavit-in-opposition fil ed by the respondent No.1), issued by the respondent No.1 is hereby set aside an d the State-respondents are directed to consider the claim for extension within a period of 1(one) month from today, in the light of the above finding and obser vations. 13. In W.P.(C) No.3013/2011, the grievance of the petitioner is that subsequent to rejection of their claim of extension of lease by the order dated 09.03.2011, the State-respondents had proceeded for fresh settlement of the sai d fishery area and published a notice under No.DTN/44-2010, dated 03.06.2011 (An nexure-T to the writ petition being W.P.(C) No.3013/2011), which is impugned. 14. In view of the finding and direction, as passed in W.P.(C) No.19 15/2011 in the foregoing para-11, the impugned notice for sale of mahal under No .DTN/44-2010, dated 03.06.2011 (Annexure-T to the writ petition being W.P.(C) No .3013/2011), is hereby set aside. 15. Both the writ petitions are allowed. The records as produced be returned to the learned Govt. Advocate forthwith. No order as to costs.