WP(C) 1421/2008 BEFORE HON’BLE MR. JUSTICE T.NANDAKUMAR SINGH JUDGMENT AND ORDER The petitioner is a society, registered in the name and style of Dibrugarh Fishery Co-Operative Society Limited, Dibrugarh (for short the peti tioner society) and formed by 100% actual fishermen belonging to the Scheduled C aste community and fishing is their only means of livelihood. The petitioner, by this writ petition, is assailing order of the Government of Assam being No.FISH 237/86/pt II/250 dated Dispur, the 31st March, 2008 for extending the settlemen t period of the Brahmaputra Part-III, IV & V Fishery for three years in favour o f the sitting lessee i.e. M/s Brahmaputra Part-III, IV & V Fishery Co operative Society Ltd ( the respondent No.5 society) with an enhanced rate of 10% over the annual revenue w.e.f. 1.4.2008 to 31.3.2011. [2] Heard Mr.AK Goswami, learned senior counsel for the petitioner, the learned GA, Assam appearing on behalf of respondent Nos.1 to 4 as well as Mr .NC Das, learned senior counsel appearing for respondent No.5. [3] A short factual panorama, leading to the filing of the present w rit petition, which would be sufficient for deciding the matter in issue in the present writ petition, is that: the respondent No.5, i.e. M/s Brahmaputra Part-I II, IV & V Fishery Co operative Society is also a registered society. The said f ishery i.e. Brahmaputra Part-III, IV & V (for short the fishery), Dibrugarh Dist rict was settled with the respondent No.5/society in the year, 1976 which was ca ncelled in the year 1978. Immediately after cancellation, the fishery was again settled with respondent No.5 society for a period from 1978 to 31.03.1984 at Rs. 1,04,500/-. The fishery was again settled with the respondent No.5 society at th e rate of Rs.92,640/- w.e.f. April, 1984 and since then the respondent No.5 soci ety has been the lessee of the fishery till date i.e. for a period of 24 years, either through fresh settlement and/or extension. The fishery was again settled with the respondent No.5 society vide order dated 8.11.2000, issued in exercise of power conferred under proviso to Rule 12 of the Assam Fishery Rules, 1953 for a period from 1.4.2001 to 31.3.2008. As the settlement period of the fishery to the respondent No.5 society was coming to an end, the petitioner society and tw o other societies namely, M/s Dehing Part-I Fishery Co operative society Ltd and Morichagaon Fishery Co operative Society Ltd had separately applied for direct settlement of the fishery. [4] Rules 8 and 12 of the Assam Fishery Rules, 1953 are relevant for deciding the matter in issue in the present writ petition. Accordingly, for eas y reference Rule 8 and 12 of the Assam Fishery Rules, 1953 are quoted hereunder: [Rule 8.Settling Authority- (a) The Deputy Commissioners or the Addition al Deputy Commissioners in the case of Sadar Sub-Divisions and the Sub-Divisiona l Officers in case of other Sub-Divisions shall be the authorities for settlemen t of all registered fisheries under tender system of sale in their respective ju risdiction. (b) Extension of the term of lease- (i) Where &. .. .. . .. the period of le ase of registered fisheries being ordinarily not less than three years is interf ered with, due to any natural cause or for any unavoidable reasons beyond the co ntrol of the lessees, Government may extend the period of such lease supported b y 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 F isheries extend the period of lease of a fishery with an intending pisciculturis t who should invariably be the sitting lessee and who agrees to accept such an e xtension at a revenue and for such other additional terms and conditions as may be specified by Government: Provided that one of the conditions of extension of lease against piscic ulturel plan shall invariably be the implementation of approves Scheme or Scheme s of Development and improvement of such a fishery at the lessee’s own cost with in a target period to be fixed by Government. The orders of extension of lease on the aforesaid grounds, passe d by the State Government shall be final and no appeal shall lie against such or ders of extension. (c) Development of Fisheries and their consequential settlement- (i) The Sta te Government on expiry of the term of settlement, may at any time, by a notific ation in the official Gazette, stop any fishery from further settlement under te nder system and vest management of such a fishery with the Director of Fisheries for development. On publication of such Notification, the Deputy Commissioner o r Sub-Divisional Officers, as the case may be, shall handover the fishery to the Director of Fisheries: Provided that the Director of Fisheries may call for tenders consistent with the relevant provisions of these rules for settlement of such a fishery and submit the same with his view thereon within fifteen days of the date of openin g the tenders to Government for approval. The decision of the State Government i n this behalf shall be final: Provided further that such settlement shall not interfere or conflict wi th the work of development of such a fishery and that the provisions of Rule 50 of the Fishery Rules will not apply in case of such settlement. [ (ii) The State Government may at any time after constitution of the Assam Fis heries Development Corporation by a Notification in the Official Gazette, vest m anagement of any registered fishery with the Assam Fisheries Development Corpora tion as considered necessary for the purpose of its development and management. On publication of such Notification the Deputy Commissioners, the Sub-Divisional Officers and the Director of Fisheries Assam, as the case may be shall hand ove r such fisheries to the Corporation. ] (d) Confirmation of Sale- All sales of fisheries in the District made by the Deputy Commissioners or Sub-Divisional Officers shall be reported not later tha n seven days from the date of such sales to the Commissioners of Divisions for c onfirmation in Form No.100 of the Assam Land Revenue manual, Volume II Conformat ion orders must be passed within a period of thirty days from the date of receip t of such proposals. (e) Re-sale of fisheries- When for default of kist money or for violation of any of the conditions of the fishery lease including any of the provisions of t hese rules by a lessee the fishery shall be put to re-sale under tender system a t the risk of original lessee. Notice of re-sale shall be given as in the case o f the original sale with additional proviso that the re-sale shall be at the ris k 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 auction: ] [Provided that the Government shall settle a 60% category fishery with s pecial category of co-operative Societies, Non-Government Organisations and Self Help Groups consisting of 100% actual fishermen in the neighbourhood of the fis hery concerned by the Tender System. [5] On plain perusal of Rule 8(a) and Rule 12 of the Assam Fishery R ules, 1953, it appears that normally all the registered fisheries shall be settl ed under tender system of sale in place of sale, save and except those referred to in Sub-Rule 8(b) of the Assam Fishery Rules, 1953. Extension of term of lease of a sitting lessee can only be made by the Government in exceptional cases for reasonable period so as to enable such lessee to make good the loss. Therefore, the core questions to be decided in the present writ petition, i.e. whether the re are exceptional special reasons for extension of the term of lease of the fis hery in favour of the sitting lessee, i.e. respondent No.5 society from 1.4.2008 to 31.3.2011 and also as to whether the impugned order dated 31.03.2008 for ext ension of the lease was passed in good faith and with the best of intentions to further the purpose of the legislation which confer the powers and also by takin g into consideration of the grounds relevant to the object on the basis of which the authority has been so empowered and also as to whether the continued extens ion of the settlement period of fishery in favour of respondent No.5 society, wi ll amount to unfair treatment to the other societies or not? [6] The petitioner society in the present writ petition alleges that Chairman of the respondent No.5 society who was holding the post of Chairman, D ispur Municipal Board, belonged to the ruling party in power in the State was tr ying to have the extension of term of settlement of the fishery in favour of res pondent No.5 society. The petitioner also further contends that respondent No.5 society earned profits from the fishery and they suffer no loss whatsoever. Taki ng advantage of the proximity to the power, respondent No.5 society had applied on 21.1.2008 for extension of settlement period before the Hon’ble Minister, Fis hery. The petitioner society again on 18.03.2008, in addition to the other petit ion dated 3.3.2008 filed an application before the Hon’ble Commissioner and Secr etary to the Government of Assam, Fishery Department, Dispur, stating that respo ndent No.5 society was already enjoying 60% category of fishery namely, Sessanad y of Dibrugarh District for more than 12 years and was also settled with Dihing part-I fishery of Dibrugarh District since 10-12 years back till 3.6.2007. The p etitioner society in their representation also contended that on the last earlie r occasions also respondent No.5 society had resorted to such tactics of getting report from the authority that the respondent No.5 society incurred heavy loss during the period of settlement of fishery for extension of the settlement perio d and also that the reports were not correct. The said tactics adopted by respon dent No.5 society was to gain undue benefit at the cost of others in view of the political connection. The petitioner society and others had expressed their wil lingness to enter into a negotiation and also had offered to pay a higher amount as annual revenue per year for the fishery. [7] Although the management of fishery is under the District Authori ty of Dibrugarh, in fact, the fishery falls under 5 revenue circles of three dis tricts, namely, Tinsukia, Dibrugarh and Sibsagar and names of the said five reve nue circles are Tinsukia Revenue Circle (for part III of the fishery), Chabua Re venue Circle (for Part III of the fishery, in part), Dibrugarh East Revenue Circ le, Dibrugarh West Revenue Circle (for part IV and V of the fishery, in part) an d Demow Revenue Circle (for part V of the fishery, in part). The authority conce rned, called report on the application filed by the respondent No.5 society for extension of period of settlement of fishery only from the Deputy Commissioner, Dibrugarh who had submitted vague report on 27.03.2008 basing on a joint verific ation report submitted by the Circle Officer of Dibrugarh East Circle with Circl e Officer of Jonai and Sissiborgaon and Range Officers of Jonai on 13.05.2002. I n the said report dated 27.03.2008 the Deputy Commissioner, Dibrugarh, stated th at respondent No.5 society incurred loss but nothing is mentioned even about the approximate amount of loss incurred. In that report dated 27.03.2008, reasons f or the alleged loss incurred by respondent No.5 society was that Jonai MP and Mu rkung Selek AP had settled a part of Brahmaputra Part III in the name and style of ’Lali’ and that the Block Development Officer, Lahowal Development Block had settled a portion of the Fishery to ’Madhur Self-Help Group’ (SHG) vide order No .LAP 1/2002-03 dated 1.7.2002 during the peak season of fishing but the report d oes not mention the period of settlement of part of Brahmaputra Part III fishery in the name and style of ’Lali’ and also the approximate area of part of the Br ahmaputra Part III settled by the Jonai MP and Murjung Selek AP and the Block De velopment Officer, Lahowal Development Block. The said report dated 27.03.2008 i s annexed as Annexure-IV to the writ petition and on plain perusal of the same i t is clear that even the approximate amount of loss incurred by respondent No.5 society is not mentioned and the reasons for incurring the loss by respondent No .5 society are so vague and cryptic. Over and above, even though the fishery adm ittedly falls within five revenue circles the Deputy Commissioner, Dibrugarh did not even call the verification report from all the five revenue circles before submitting the said vague report dated 27.03.2008. For easy reference, report da ted 27.03.2008 is quoted hereunder: OFFICE OF THE DEPUTY COMMISSIONER: DIBRUGARH DISTRICT DIBRUGARH No.DFF-1/2008/55 Dated Dibrugarh the 27th March 2008 To The Commissioner and Secretary Govt. of Assam, Fishery Department Dispur, Guwahati-6 Sub: Extension of lease term of M/s Brahmaputra Pt.III, IV & V FCS Ltd. Sir, With reference to the subject cited above and as desired by the Government I hav e the honour to furnish herewith the required report on the petition submitted b y Shri Harish Ch.Das, Secretary M/s Brahmaputra Pt.III, IV & V FCS Ltd for exten sion of the lease term of the co-operative society. The following factual positi on is adduced hereby for your kind information and perusal. 1. M/s Brahmaputra Pt.III, IV & V FCS Ltd is a registered Co-operative Soci ety bearing Registration No.D-119, dtd.26.04.1976. The society is reorganized on e as per government policy. 2. The society comprises of actual fishermen only belonging to the Schedule d Caste Community exclusively and totally as per rules. 3. The society falls within the area of operation of the following villages situated on both sides of the River Brahmaputra from Jonai Mukh to Milankur in the Nrth Bank and from Laikamukh to Dehingmukh in the south Bank. The villages are Maijan, Amaraguri, Tekela Chiring, Natun gaon,, Sukanpukhuri, S engamari, Bogidol and Tulsigaon. 4. It is a fact that as per order of the Government on 8.11.2000 vide No.FI SH 237/86/Pt.II/145 the Government of Assam settled the Brahmaputra Part III, IV & V Fishery of Diburagrh district with M/s Brahmaputra Part III, IV & V Fishery Co operative Society Ltd. Dibrugarh for a period of 7 (seven) years w.e.f. 1.4. 2001 to 31.3.2008. 5. It is true that Jonai MP and Murkung Selek AP had settled a part of Brah maputra Pt.III in the name and style of Lali with resultant losses being incur red by M/s Brahmaputra Pt.III, IV & V FCS Ltd. In this connection the aggrieved society had filed a case before the Hon’ble Hig h Court, Guwahati. Similarly Sissibor Gaon AP under Dhemaji district has settled some portion of Br ahmaputra in the name and style of Rekha Chapory , Botum suti to some indivi ual Mahaldars for which financial repercussions were faced by M/s Brahmaputra Pa rt III, IV & V Fishery Cooperative Society Ltd. A joint verification report in respect of the dispute was filed by Circle Office r of Dibrugarh East Circle with Circle Officers of Jonai and Sissiborgaon and Ra nge Officers of Jonai on 13.05.2002. 6. It has been reported by concerned Circle officer, Dibrugarh (East) that the Block Development Officer, Lahowal Development Block had settled a portion o f the fishery to Madhur Self-Help Group (SHG) vide order No.LAP 1/2002-03, dtd. 1.7.2002 during the peak season of fishing. As a result of which the lessee soci ety incurred losses. 7. It is pertinent to mention that for purposes of settling the fishery, Go vernment vide notification No.FISH.2/2000/171, dated 31.3.2005 made certain amen dments in Fishery Rule 12, whereupon it was stated that henceforth the 60% categ orized fisheries should be settled by Tender system forbidding permission for direct settlement. But Govt. again amended the Fishery Rule 50:11(2) wherein it is stated that afte r expiry of the lease term the same may be renewed again subject to submission o f an application by the lessee and payment of the fixed fee (Please see copy of Assam Gazette Extraordinary, Notification No.FISH.2//2000/171, dated 31.03.2005 enclosed). In this case, the current lessee has submitted the application for extension of period of lease of Brahmaputra Pt.III, IV & IV Fishery, which may be examined an d considered as per rules. This report is in compliance with the direction of Hon’ble High Court, Guwahati order No.WP(C) 873/2008 (Please refer copy of the order enclosed). Enclo: As stated above. Yours faithfully, Sd/- Deputy Commissioner, Dibrugarh. [8] In the said report dated 27.03.2008 it has been mentioned that t he said report is in compliance with the order of Gauhati High Court passed in W P(C) No.873 of 2008. The WP(C) No.873 of 2008 is a writ petition filed by respon dent No.5 society and disposed of vide order dated 7.3.2008 at the motion stage with a direction to the concerned authority to consider and dispose of the appli cation dated 21.01.2008 filed by the respondent No.5 society for extension of pe riod of settlement for a further period so as to enable them to make good the lo ss. The order of this Court dated 7.3.2008 passed in WP(C) No.873 of 2008 read a s follows: Heard Mr.NC Das, learned counsel for the petitioner. The petitioner is a sitting lessee in respect of the Brahmaputra Part-II I, IV & V fisheries in the District of Dibrugarh and the settlement of the petit ioner would expire on 31.03.08. During the currency of the lease period, the petitioner has made prayer for extension of the lease vide application dated 21.1.08 but the same has not b een attended to although necessary report has been called for from the Deputy Co mmissioner, Dibrugarh. In view of the aforesaid limited question raised for consideration in th is writ petition and taking note of the fact that the period of lease would expi re on 31.3.08, this writ petition stands disposed of with the direction that the concerned authority shall dispose of the aforesaid application of the petitione r as expeditiously as possible at any rate before expiry of the period of settle ment. This disposes of the writ petition. [9] The respondent No.5 society also filed affidavit-in-opposition i n the present writ petition. In their affidavit in opposition it is stated that respondent No.5 society incurred financial loss and the said financial loss was because of the settlement of a part of Brahmaputra Part III, in the name and sty le of ’Lali’ by the Jonai Makhuma Parishand and Murkong Selek Anchalik Panchayat . In the affidavit-in-opposition respondent No.5 society did not mention approxi mate amount of loss or the extent of amount incurred by them and also the area o f the part of Brahmaputra Part III, fishery settled in the name and style of ’La li’ and period of settlement. As stated above, the extension of period of lease under Rule 8(b)(1) of the Assam Fishery Rules, 1953 will be only in exceptional case so as to make good the loss. As directed by this Court, the relevant govern ment file was also placed before this Court by the learned Government Advocate f or perusal. On perusal of the same it clearly depicts that the impugned order da ted 31.3.2008 for extending the period of settlement of fishery in favour of res pondent No.5 society is based on the said report dated 27.3.2008 submitted by th e Deputy Commissioner, Dibrugarh. Admittedly, respondent No.5 society has been e njoying the fishery for the last more than 24 years. [10] The Apex Court in Mahinder Singh Sita Ramji Vs Governor of Delhi & Ors: AIR 1974 SC 1868 held that when a procedure is prescribed by the legisla ture, it is not for the court to substitute by a different one according to its opinion of justice; when the legislature has spoken, judge cannot afford to be t he wiser. The procedure and requirement for extension of period of settlement of fishery is clearly and unambiguously mentioned in Rule 8(b)(1) of the Assam Fis hery Rules, 1953. [11] The Apex court in a case arising from this court i.e. in Dinesh Chandra Sangma Vs State of Assam & Ors : AIR 1978 SC 17 held that it is a cardin al rule of construction that no words should be considered redundant or surplus in interpreting the provisions of a statute or a rule. Again, the Apex court in Bhavnagar University Vs Palitana Sugar Mill (P) Ltd & Anr : (2003) 2 SCC 111 hel d that the scope of the legislation on the intention of the legislature cannot b e enlarged when the language of the provision is plain and unambiguous. In other words, statutory enactments must ordinarily be considered according to its plai n meaning and no other words would be added, altered or modified unless it is pl ainly necessary to do so to prevent a provision from being unintelligible, absur d, unreasonable, unworkable or totally irreconcilable with the rest of the statu te. [12] The true meaning of a provision of law has to be determined on t he basis of what it proves by its clear language, with due regard to the scheme of law. Ref: Bhavnagar University Vs Palitana Sugar Mill (P) Ltd & Ors : (2003)2 SCC 111. The maxim ’Expressum facit cessare tacitum’ (when there is expression mentioned of certain things, then anything not mentioned is excluded) had been d iscussed by the Apex Court in Union of India & Anr Vs Tulsiram Patel : (1985) 3 SCC 398 (C.B) and also by this Court in Heman Bihari Singh Vs State of Manipur : (2004) 1 GLT 1. [13] It is cardinal rule of construction that no word should be const rued redundant or surplus in interpreting the provision of a statute or rule (Re f: Dinesh Chandra Sangma Vs State of Assam & Ors : AIR 1978 SC 17). The Apex Cou rt in State of Maharashtra & Ors Vs Santosh Shanker Acharya : (2000) 7 SCC 463 h eld that it is too well known principle of construction of statute that the legi slature engrafted every part of the statute for a purpose. The legislative inten tion is that every part of the statute should be given effect. Legislature is de emed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compell ing reasons. [14] It is well settled law that power of judicial review, generally speaking, is not directed against a decision making process and also that courts are more concerned with a decision making process rather than the decision itse lf while exercising the power of judicial review. Ref: (1) Ranjit Thakur Vs Unio n of India : (1987) 4 SCC 611, (2) Style (Dressland) Vs Union Territory, Chandig arh & Anr : (1999) 7 SCC 89. But it is also equally well settled that the Court can see while exercising the power of judicial review as to whether the administ rative decision was made reasonably or not and also as to whether that administr ative decision is an irrational one based on irrelevant consideration. Ref: Deci sion of the Apex Court in Union of India & Anr Vs G.Ganayutham : (1997) 7 SCC 46 3. Para 12 and 14 of the SCC in G.Ganayutham (supra) are quoted