WP(C) 3125/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. A.K. Goswami, the learned Sr. counsel for the petitioner and M r. P. Roy, the learned State counsel appearing for the respondents. The petitioner cooperative society, who is the settlement holder in resp ect of 2(two) fisheries, namely, Dibru Part-II and III River Fishery for the per iod from 01.05.2003 to 30.04.2013, in the districts of Dibrugarh & Tinsukia and Brahmaputra Part-I and Dibang River Fisher for the period from 2008-09 to 2014-1 5, in the district of Tinsukia, has filed this petition challenging the order da ted 03.04.2010 passed by the District Fishery Development Officer, Dibrugarh and the communication issued by the said authority, also dated 03.04.2010 to the Su b-Divisional Fishery Development Officer, Fishery Extension Officer and Fishery Development Block. The petitioner has also challenged the order dated 28.04.2010 issued by the Addl. District Magistrate, Dibrugarh, promulgating the prohibitor y order under Section 144 Cr.P.C. relating to catching and selling of brood fish es. By order dated 03.04.2010 the District Fishery Development Officer, Dibr ugarh informed all concerned about enforcement of the 2005 amendment of the Assa m Fishery Rules, 1953 relating to the fishing and trading of fish from 1st April to 15th of July i.e. during the breeding season and use of certain nets, in vie w of Rules 23 and 23-A of the Assam Fishery Rules, 1953 (in short the 1953 Rules ), as amended. By the communication of the even date, the District Fishery Devel opment Officer also informed all concerned relating to the prohibition of catchi ng fish and trading of the same, as mentioned in the aforesaid Rules w.e.f. 1st April to 15th of July, 2010. By order dated 28.04.2010 the Addl. District Magist rate, Dibrugarh, promulgated the prohibitory order under Section 144 Cr.P.C. ban ning catching of brood fishes as well as use of certain nets during the breeding season in the natural water bodies from 1st April to 15th July, 2010, in view o f the provisions contained in Rules 23 and 23-A of the 1953 Rules, as amended. B y the said order illegal fishing and selling of seeds has been prohibited. Mr. Goswami, the learned Sr. counsel appearing for the petitioner referr ing to the provisions contained in Rules 23 and 23-A of the 1953 Rules, as amend ed vide notification dated 31.03.2005, has submitted that while under Rule 23, u se of certain types of nets from 1st April to 15th July have been prohibited, by Rule 23-A catching of certain species of brood fishes, namely, Rohu, Catla, (Ba hu), Mrigal, Mali (Calbasu), Chital, Kharia, Pithia (Mahasol), Gharia and Kuri ( Gonius) has been prohibited during the season beginning from the 1st day of the month of May and ending on the 15th day of the month of July, both days inclusiv e, in any proclaimed fishery apart from catching and killing, by any method, of fish for any purpose whatsoever including consumption and selling of under-sized fish of the following species, namely, Rohu, Catla, Bahu, Mrigal, Chital, Khari a, Pithia (Mahasul), Gharia below 23 cm in length and Mali (Calbasu), Gonius, Ku rhi/Bhagan below 10 cm in length has been prohibited between the 1st day of Augu st and 31st day of October of a given year. According to Mr. Goswami, by the afo resaid communication dated 03.04.2010 and the order dated 28.04.2010 what has be en done by the District Fishery Development Officer as well as by the Addl. Dist rict Magistrate respectively, is that the total ban of catching and selling of f ishes has been imposed. Mr. Goswami submits that the said authorities by passing such order, has traveled beyond the provisions of Rules 23 and 23-A of the 1953 Rules. It has, therefore, been submitted that the said communication as well as the order, being contrary to Rules 23 and 23-A of the said Rules, are required to be set aside. Mr. Roy, the learned State counsel appearing for the respondents on the other hand referring to the aforesaid communication dated 03.04.2010 and order d ated 28.04.2010 has submitted that it is apparent from the said communication an d the order that those have been passed keeping in view the provisions contained in Rules 23 and 23-A of the 1953 Rules and hence use of certain description of nets as given in Rule 23 and catching of brood fishes as mentioned in Rule 23-A has also been banned. It has further been submitted that there is no total ban o f catching and selling of fish other than mentioned in Rule 23-A of the said Rul es. For better appreciation Rule 23 and Rule 23-A are quoted below:- 23. Restrictions of the use of nets - (1) The use of Berjal/Mahajal or Fasijal or any type of net with meshes less than 7 c.m. bar/14 c.m. mesh is proh ibited during breeding season beginning from the first day of the month of April and ending on the fifteen day of the month of July, both days inclusive, in any proclaimed fishery. Deleted. (2) The use of net with less than 1 c.m. bar/2 c.m. mesh Mosaijal in siz e is prohibited in any fishery throughout the year. Deleted. (3) The Officers of the Fishery Department not below the rank of Fishery Extension Officer shall have access to any records/register/document, or any ot her materials including craft and gear of the lessee and have the power to seize them if any breach of rules is detected during the course of inspection and can impose a penalty to the extent of Rs.500/- or as fixed by the Government from t ime to time. 23-A. Restriction on fishing during breeding season on catching and sell ing of under sized fish - (1) Catching of brood fish (fish carrying eggs and spe rm) of the following species, namely - Rohu, Catla, (Bahu), Mrigal, Mali (Calbas u), Chital, Kharia, Pithia (Mahasol), Gharia and Kuri (Gonius) is prohibited dur ing season beginning from the first day of the month of May and ending on the fi fteenth day of the month of July, both days inclusive, in any proclaimed fishery . (2) Catching and killing, by any method, of fish for any purpose whatsoe ver including consumption and selling of under-sized fish of the following speci es, namely - Rohu, Catla, Bahu, Mrigal, Chital, Kharia, Pithia (Mahasul), Gharia below 23 cm in length and Mali (Calbasu), Gonius, Kurhi/Bhagan below 10 cm in l ength is prohibited between the first day of August and 31st of October: Provided that the above restrictions may be relaxed by the order of the Director of Fisheries in writing, for piscicultural purposes only. (3) All under-sized fish specified in sub-rule (2) above caught in the n ets shall either be let off into the fishery or supplied to the Fisheries Depart ment by the lessee in live conditions at the rate to be fixed by the Government from time to time. It appears from the first order dated 03.04.2010 issued by the District Fishery Development Officer that what intended was to inform all concerned about the 2005 amendment of Rule 23 and the insertion of Rule 23-A in 1953 Rules, rel ating to use of certain nets as well as catching and selling of brood fishes of certain species, as mentioned therein. By communication dated 03.04.2010 the Dis trict Fishery Development Officer has intimated all concerned about the provisio ns contained in the aforesaid Rules, namely, Rules 23 and 23-A as well as Rule 4 1, which provides for the penalty on breach of the Rules. The contents of the said order as well as the communications, both dated 03.04.2010, therefore, apparently do not contravene the provisions of Rules 23 and 23-A of the said Rules, except for the period that in the said communication s and order, it has been mentioned that the ban of catching and selling of such type of fish is for the period from 1st April to 15th July, 2010, though under R ule 23-A such ban commences from 1st day of May to 15th day of July under Rule 2 3-A(1) and from 1st day of August to 31st of October under Rule 23-A(2), of cert ain species of the fish with certain sizes. The said order as well as the commun ications dated 03.04.2010 cannot said to be in violative of the Rule 23 relating to the use of nets. The Addl. District Magistrate vide order dated 28.04.2010 promulgated th e prohibitory order under Section 144 Cr.P.C. in the district of Dibrugarh from fishing and selling of seeds in the said district, though it has noticed the pro visions of Rules 23 and 23-A as well as Rule 41 of the 1953 Rules. The said orde r promulgating the prohibitory order under Section 144 Cr.P.C., as submitted by Mr. Roy, the learned State counsel, has to be read as an order imposing prohibit ion in respect of the use of the nets as mentioned in Rule 23 as well as catchin g and selling of brood fish of the specified species as well as specified sizes as mentioned in Rules 23-A(1) & (2) respectively of the said Rules. In view of the above, the present writ petition is disposed of with the direction to the respondent authorities to strictly enforce the ban relating to the use of certain types of nets as specified in Rule 23 and also catching and s elling of fish for the period as mentioned in Rule 23-A of the 1953 Rules. It is , however, made clear that no ban can be imposed by any authority for catching a nd selling of the fish apart from those mentioned in Rule 23-A of the 1953 Rules . The petitioner shall be allowed to catch and sell such other types of fish, wh ich has not been prohibited under the Rules. The writ petition is accordingly disposed of.