WP(C) 5133/2009 BEFORE HON’BLE MR JUSTICE HRISHIKESH ROY Heard Ms. U. Baruah, learned counsel appearing for the writ petitioner in W.P(C) 5133/09, who challenge the one year extension granted in respect of No.2/88- Dha ndrad Brahmaputra Part-II and III fishery hereinafter referred to as The Fisher y in favour of the respondent No.6 M/S Chandrakhola Beel Fishery Co-operative S ocieties Ltd (herein referred to as settlement holder). Also Heard Mr. I. Choudhury, learned counsel representing the settlement holder who has filed W.P(C) 307/2010, seeking a longer extension for 2 years, instead o f the one year granted to them. Mr. H. Rahman, learned Government Advocate makes submissions on behalf of the of ficial respondents. 2. By settlement order dated 18/11/2004, the Fishery was settled for a peri od of 5 years w.e.f 21/11/2009 with the settlement holder. During the subsistenc e of the lease, an application dated 28/8/2009 (Annexure-iv) was submitted seeki ng extension of the lease period. In the said application, the settlement holder claimed that they did not derive reasonable profit from the Fishery because of drought, floods and late arrival of monsoon and on these basis extension of the lease period was sought. 3. The writ petitioner society who were interested tenderer as the settleme nt period of the Fishery was ending on 21/11/2009, made an application to the Go vernment to have the Fishery settled through tender process instead of granting extension to the settlement holder. The writ petitioner also filed W.P(C) 4549/2 009 contending that the settlement holder does not satisfy the pre-condition of extension and accordingly, the Fishery should be settled through tender process. This Court by order dated 6/11/2009 disposed of the W.P(C) 4549/2009 by directi ng the Government to take an expeditious decision on the prayer for extension. 4. Thereafter hearing was fixed on 18/11/2009 where the settlement holder a s well as the writ petitioner were heard and in pursuance of the said hearing an d on consideration of the materials available, the impugned extension for a peri od of one year has been granted to the settlement holder. 5.1 The writ petitioner contends that it is not an exceptional or special ca se where the settlement holder deserves extension of the lease and there were no relevant report available to authority who decided to extend the term of fisher y. 5.2 It is further submitted by Ms. U. Baruah, learned counsel that the exten sion has been considered on the basis of a report of the Assistant Registrar of Co-operative Society who has indicated in his report dated 28/10/2009 that the s ettlement holder could not run the Fishery properly due to drought and floods. T he audited accounts of the settlement holder society for the relevant years was also forwarded by the Assistant Registrar. 5.3. The said profit and loss accounts which has been considered for extensio n has been assailed by the writ petitioner by contending that the said accounts are not exclusive to the Fishery for which extension has been granted but also p ertains to another fishery i.e. 7/93 Raidak Fishery, which is the second fisher y leased out to the settlement holder. Accordingly it is contended that the said audit report of the settlement holder society forwarded by the Assistant Regist rar of Co-operative society cannot be a good basis for determining that the sett lement holder suffered loss for the Fishery, which is to be made good by grantin g extension of the settlement period. 6.1. Defending the extension, Mr. I. Choudhury learned counsel submits that t he settlement holder society prayed for granting of extension by referring to th e extension granted to one Gauripur Fishery Co-operative Society who had been se ttled with No.1/87 Dharnad Brahmaputra Pt.II & III and Satakuri Nadi Fishery, wh ich is located in the neighbourhood with the Fishery settled with respondent No. 6 and since the Government granted extension of 2 years for the neighbourhood fi shery, the settlement holder also deserves extension for a period of 2 years, as their case is no different from the neighbourhood fishery. 6.2 It is also submitted by the learned counsel that the extension has been granted by the Government by considering the audited account and the report of t he Assistant Registrar Co-operative Society and since a reasonable basis for exe rcise of powers of extension has been provided, the scrutiny of the Court should be limited and if such reasons are found germane to the extension granted, it s hould not be interfered by the Court. 6.3. Mr. I. Choudhury further submits that merely because the settlement hold er society reflects profits in its audited accounts it cannot be said to be unde serving of extension inasmuch as, the powers under Rule 8(b) of the Assam Fisher y Rules, 1953 (herein referred to as Fishery Rules) is to be exercised to compen sate the loss suffered, having due regard to the expectation of the settlement h older and its members and not with reference to the figures in the audited accou nts. 7. Mr. H. Rahman, learned Government Advocate refers to the counter affidav it filed by the Government on 7.2.2010 and submits that the Government called fo r a report on the extension application filed by the settlement holder. On this report, the Government considered it justified to grant extension and accordingl y the impugned extension has been granted to the settlement holder. 8. Before proceeding further in the matter it may be appropriate to extract the provisions of Rule 8(b) of the Fishery Rule which confers powers for granti ng extension of the settlement period which read as follows:- (b) Extension of the term of lease- (i) Where & &.the period of lease of registered fisheries being ordinarily not less than three years is interfered wi th, due to any natural cause or for any unavoidable reasons beyond the control o f the lessees, Government may extend the period of such lease supported by offic ial reports as to the nature of cause in exceptionally special cases for a reaso nable 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 Fisheries extend the period of lease of a fishery with an intending piscicul turist who should invariably be the sitting lessee and who agrees to accept such an extension 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 ultural plan shall invariably be the implementation of approved 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 foxed by Government. The orders of extension of lease on the aforesaid grounds, passed by the State Government shall be final and no appeal shall lie against such orders of extension. 9. The scope and ambit of Rule 8(b) has been considered by this Court in th e following cases:- (i) (1994) GLR 105 Chandrapur Anchalik Mean Samabai Samity Ltd vs State of A ssam (ii) 2008(4) GLT 935 Dibrugarh Fishery Co-operative Society Ltd vs. State of Assam. (iii) (2009) 6 GLR 627 Navayug Matshyajibi Samabai Samity Ltd vs Oujari Katagu ri Bhurbandha Matshyajibi Samabai Samity Ltd. 10. A reading of this statutory provisions and also the judgment referred to above, it becomes clear that extension should be granted only in exceptional ca ses and that too for a reasonable period. The power under Rule 8(b) is to be exe rcised on the basis of an official report and the period of extension must have a close nexus with the quantum of loss sustained by the settlement holder. There fore the Court laid down that for considering extension under Rule 8(b), not onl y it has to be an exceptional and special case but the quantum of loss itself is required to be assessed as extension can be granted only for a reasonable perio d to enable the lessee to make good the loss suffered by him. 11. Under Rule 12 of the Fishery Rules all registered fisheries are required to be settled through a tender system and unless an extension is granted to an existing settlement holder, settlement is to be made through a tender process. I n this case the settlement term expired on 21/11/2009 and but for the one year e xtension, the Fishery was required to be settled by invitation of tender. It is discernible from the records that the authorities had taken steps to issue tende r notice for the Fishery but the said process was kept in abeyance due to a bye- election scheduled in the area. 12. Having examined the conditions under which the power under Rule 8(b) is to be exercised, it would now be appropriate to find out as to whether the repor t of the Assistant Registrar Co-operative Society could have been made the basis for granting the impugned extension. It is not in dispute that extension was gr anted by considering the said report dated 28/10/2009. 12.1. The profit and loss account of the settlement holder forwarded by the As sistant Registrar Co-operative indicates that the settlement holder suffered net loss of Rs.3,348 during 2005-06 and earned Rs.8,722/- profit for the year 2005- 07. It is indicated in the audit report that although the petitioner earned gros s profit for the year 2006-07, the figure of net loss shown in the audit report was on account of depreciation of assets and also for re-payment of interest on Government loan. It is further seen that audit report also took into account the expenditure incurred by the settlement holder in respect of the other fishery i .e. Raidak Fishery which too, was settled with them. 12.2 On reading of the said report, it is not possible in my view to conclude that in respect of the operation No.2/88- Dhandrad Brahmaputra Part-II and III Fishery, the settlement holder incurred any loss and even assuming a loss, the e xtent of loss, cannot be attributable specifically for operation of the No.2/88- Dhandrad Brahmaputra Part-II and III Fishery for which the impugned extension i s granted. The Court has reached this conclusion as the profit and loss statemen t in the audit report which was made the basis for granting the extension, was n ot exclusive for the Fishery for which the extension was granted as the expendit ure incurred for the No.7/93 Raidak Fishery were also taken into account in the audit report. 12.3 In a case where settlement are to be granted through tender process and extensions are to be considered in light of statutory provisions, the Court is c oncerned with the process leading to the impugned decision and there may not be any basis for substituting the decision of the Court in place of the decision ma king authority. If the authority has taken a decision on the basis of relevant c onsideration, interference of the Court may not be justified in a given case. 12.4 However, in the present case, the profit and loss account in respect of the settlement holder society does not indicate that this was an exceptional and special case where extension is justified. Causes such as floods, drought and l ate monsoon are natural phenomenon, which would have an impact in fishery operat ions and in the perception of the Court, the report of Assistant registrar Co-op erative Society does not specify any exceptional and special reasons for grantin g the impugned extension. 13. From the official record produced by the learned Government Advocate, it is seen that the extension granted for the neighbourhood fishery has been consi dered to be a relevant factor for granting extension to the settlement holder an d this is also argued by Mr. I. Choudhury who contends that the settlement holde r deserves a 2 years extension, instead of the 1 year extension granted to them. 14. On examining the order dated 28.8.2008, whereby 2 years extension was gr anted for a the neighbourhood fishery, it is seen that the extension in that cas e was considered on the basis of the report and recommendation of the Deputy Com missioner whereas in the instant case, the authorities took a decision on the ba sis of the report of Asstt. Registrar, Cooperative Society. A report on floods, drought like situations and late monsoons are best be given by the Deputy Commis sioner and a report of an Asstt. Registrar, Cooperative Society may not be consi dered conclusive on these aspects. 14.1 Apart from above, the settlement holder cannot also be placed at par wit h the Gauripur Cooperative Society Ltd. as the extension of the said society was granted nearly 1‰ years back on 28.8.2008 and the present settlement period hav ing expired only on 21.11.2009, the situation between August 2008 to November 20 09 would not be same for the settlement holder and the said Gauripur Cooperative Society Ltd. Therefore they cannot be placed at par on that basis, and thus the extension in this case cannot be justified on the pleaded case of equal treatme nt. 15. In view of the above reasoning, I find sufficient justification to allow WP(C) 5133/2009 and accordingly the extension granted to the settlement holder by the impugned order dated 20.11.2009 is set aside and quashed. For the same re asoning, WP(C) 307/2010 seeking a longer extension stands dismissed. 16.The authorities are now directed to take necessary steps for settlement of No .2/88- Dhandrad Brahmaputra Part-II and III fishery in accordance with the provi sions of Rule 12 of the Fishery Rules. The necessary exercise in this regard be expeditiously concluded, and preferably within a period of 6 weeks from today. A copy of this order be furnished to Mr. H. Rahman, learned Government Advocate f or communication to the competent authorities.