WP(C) 2855/2008 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (oral) The petitioner, by the present petition has challenged the order dated 12th May, 2006 passed by the Secretary to the Government of Assam, Fisher y Department, whereby and whereunder No.15/65 Gerua Kamarpota Fishery of Goalpar a district has been settled with the respondent No.4 by setting aside the earlie r order of settlement dated 1st March, 2006 passed by the Secretary, settling th e said Fishery in favour of the writ petitioner. The petitioner has also prayed for a direction to the State respondents to consider and dispose of the applica tion dated 20th May, 2008 filed by him before the Secretary to the Government of Assam in Fishery Department, wherein the allegation of subletting has been leve lled against the respondent No.4, apart from the allegation of non payment of ki st money regularly. [2] I have heard Mr. M.A. Sheikh, learned counsel for the petitioner , Mrs. H.M. Phukan, learned State counsel appearing for the respondent Nos.1 to 3 and Mr. A. Mannaf, learned counsel appearing for the respondent No.4. [3] Mr. Sheikh, learned counsel appearing for the petitioner referri ng to the impugned order dated 12th May, 2006 passed by the Secretary, Fishery D epartment, Government of Assam has submitted that since the Secretary of the res pondent No.4 Society in writing has informed the authority concerned about his i nability to accept the settlement of the Fishery in question, though the said So ciety was the highest bidder, the Secretary, Fishery Department ought not to hav e set aside the order of settlement made in favour of the writ petitioner and se ttled the Fishery in favour of the respondent No.4 by the impugned order dated 1 2th May, 2006 on the ground that such an application was never submitted by the Secretary of the respondent No.4 Society. The learned counsel submits that sinc e the respondent No.4 has expressed its inability to accept the order of settlem ent of the Fishery in question, there was no illegality in passing the earlier o rder of settlement dated 1st March, 2006 in favour of the writ petitioner. It h as also been submitted by Mr. Sheikh, learned counsel for the petitioner that af ter getting the settlement of the Fishery in question by the respondent No.4, th e same has been sublet to 2 (two) persons by the respondent No.4 and though in t hat respect he, on 20th May, 2008, lodged a complain before the Secretary to the Government of Assam in Fishery Department, pursuant to which an enquiry was con ducted, no final decision has been taken by the authority till date. The learne d counsel, therefore, submits that in the event, this Court is not inclined to i nterfere with the impugned order dated 12th May, 2006 settling the Fishery in fa vour of the respondent No.4, the State respondents may be directed to make an en quiry on the complain lodged by the petitioner on 20th May, 2008 relating to the allegation of subletting by the respondent No.4 and to pass necessary order wit hin a reasonable period of time. [4] Mrs. Phukan, learned State Counsel appearing for the respondent Nos.1 to 3 placing reliance on the affidavit-in-opposition filed by the responde nt No.3 has submitted that though the petitioner was settled with the Fishery in question on 1st March, 2006, the same had to be cancelled and the order dated 1 2th May, 2006 had to be passed, as the earlier order in favour of the writ petit ioner was passed on the basis of the alleged writing given by the respondent No. 4 Society expressing its inability to accept the settlement, which was, however, subsequently found to be not correct. It has also been submitted that the Pres ident of the writ petitioner Society and 2 (two) Members had given a writing tha t it was a misdeed of the Secretary of the petitioner Society, which resulted in creation of a document in the name of the Secretary of the respondent No.4 Soci ety leading to the settlement of the Fishery in favour of the writ petitioner vi de order dated 1st March, 2006. The learned State Counsel, therefore, submits th at since the authority on the basis of the enquiry made has arrived at a finding of fact that such a document is a forged document, this Court may not interfere with the order dated 12th May, 2006, more so, when the writ petition has been f iled challenging the said order almost after 2 (two) years. Relating to the all egation of subletting, referring to the records produced it has been submitted b y Mrs. Phukan that though the Deputy Secretary to the Government of Assam, Fishe ry Department vide communication dated 4th July, 2008 directed the Deputy Commis sioner to make an enquiry relating to the allegation of subletting levelled by t he petitioner in the application dated 20th May, 2008, the record does not revea l making of any enquiry in that regard. The learned State Counsel has also fair ly submitted that though the respondent No.3 in the affidavit-in-opposition has made a statement that there was no subletting by the respondent No.4 in respect of the Fishery in question, there is no record relating to taking any decision o r making any enquiry in that regard. The learned State Counsel, therefore, subm its that now the enquiry would be conducted by the Deputy Commissioner and neces sary report in that regard would be submitted before the Secretary of the Depart ment for taking a decision in that regard. [5] Mr. Mannaf, learned counsel appearing for the respondent No.4 al so submits that the petitioner after about 2 (two) years have challenged the ord er dated 12th May, 2006 passed by the Secretary, Fishery Department settling the Fishery in question in favour of the respondent No.4. It has also been submitt ed that the Secretary of the respondent No.4 Society never submitted any applica tion expressing his inability to accept the settlement being the highest bidder, which document was created by the Secretary of the petitioner’s Society for mak ing undue gain and to get the order of settlement, which, when found to be forge d, the authority has passed the impugned order, which requires no interference b y this Court. Mr. Mannaf also submits that no enquiry was conducted by any auth ority relating to the allegation of subletting, though the writ petitioner conte nds that on the basis of the complain filed by him on 20th May, 2008, an enquiry was conducted. The learned counsel submits that the respondent No.4 never subl et any portion of the Fishery in favour of anyone and he is ready to face any en quiry that may be initiated by any authority in that regard. [6] Pursuant to the NIT dated 28th October, 2005 issued by the Deput y Commissioner, Goalpara by which the process for settlement of the Fishery in q uestion was initiated, the petitioner as well as the respondent No.4 Societies s ubmitted their respective bids. While the petitioner offered an amount of Rs.1, 12,222/- per year, the respondent No.4 offered Rs.1,40,786/- per year. The Fish ery was, however, initially settled with the petitioner Society vide order dated 1st March, 2006 passed by the Secretary of the Fishery Department, though the r espondent No.4 was the highest bidder, on the basis of a document allegedly writ ten by the Secretary of the respondent No.4 Society expressing his inability to accept the settlement. It appears from the record that immediately on coming to know about passing of such order, the respondent No.4 vide application dated 19 th April, 2006 approached the Deputy Commissioner challenging the document alleg edly written by the respondent No.4 Secretary. An enquiry was thereafter, condu cted, wherein the President and 2 (two) elderly Members of the petitioner’s Soci ety in writing informed the authority that it was the misdeed of the Secretary o f the petitioner’s Society, who has converted a blank signed paper executed by t he Secretary of the respondent No.4 Society to a document expressing the inabili ty to accept the settlement if offered. The Secretary to the Government of Assa m, Fishery Department on the basis of such enquiry and upon hearing all the part ies concerned came to the finding that the document, on the basis of which earli er settlement was made in favour of the writ petitioner, was forged one and such a document was never executed by the Secretary of the respondent No.4 Society. The Fishery in question thereafter, was settled by the impugned order dated 12t h May, 2006 in favour of the respondent No.4. Such finding, as recorded by the Secretary while passing the impugned order is not open to challenge in the writ proceeding, unless of course any glaring mistake is pointed out by the writ peti tioner in recording such finding, which the writ petitioner has failed to do. T hat apart, the writ petitioner has waited for more than 2 (two) years to file a writ petition challenging the order dated 12th May, 2006, which has been filed o nly after lodging a complain before the Secretary of Fishery Department on 20th March, 2008 levelling the allegation of subletting. By such conduct, the petiti oner has accepted the impugned order dated 12th May, 2006 passed by the Secretar y in favour of the respondent No.4. Hence, the challenge made to the said order is not sustainable in law. [7] This leads to the next contention of the learned counsel for the petitioner relating to the allegation of subletting of the Society by the respo ndent No.4. According to the petitioner, he filed an application on 20th March, 2008 before the Secretary, Government of Assam, Fishery Department levelling th e allegation of subletting of the Fishery by the respondent No.4 and though an e nquiry was conducted on the basis of such allegation, no final order, however, h as been passed by the authority, namely, the Secretary of the Fishery Department . The records produced by the learned State Counsel reveals existence of a comm unication dated 4th July, 2008 issued by the Deputy Secretary, Government of Ass am in the Fishery Department to the Deputy Commissioner, Goalpara requesting him to make an enquiry relating to the allegation levelled by the petitioner and to furnish a detailed report to the Department. The records, however, do not reve al making any enquiry by the Deputy Commissioner in that regard, though the peti tioner in the affidavit-in-reply filed on 16th March, 2009 has claimed that on t he basis of the direction issued by the Deputy Commissioner vide communication d ated 13th January, 2009, the Circle Officer, Matia Revenue Circle has submitted a report with the finding that the respondent No.4 has sublet the Fishery. In t he absence of any record produced before this Court, such assertion of the petit ioner that enquiry was conducted and a finding of subletting was recorded, canno t be accepted. Even if such an enquiry was conducted, it is not known whether a ll the concerned parties, more particularly, the settlement holder, namely, the respondent No.4, was heard or not, as it is the specific case of the respondent No.4 that no enquiry was conducted with any notice to him. [8] Since the allegation of subletting has been levelled by the peti tioner against the respondent No.4 vide application dated 20th May, 2008, which was taken cognizance of by the Secretary of the Fishery Department and according ly the Deputy Commissioner was requested to make an enquiry vide communication d ated 4th July, 2008, the Deputy Commissioner is duty bound to make an enquiry an d submit a report to the Secretary, Government of Assam, Fishery Department to t ake a final decision in that regard. [9] That being the position, while refusing to interfere with the or der dated 12th May, 2006 passed by the Secretary to the Government of Assam, Fis hery Department, the writ petition is disposed of directing the Deputy Commissio ner, Goalpara to cause an enquiry in terms of the request made by the Deputy Sec retary in Fishery Department vide communication dated 4th July, 2008, into the a llegation of subletting levelled by the petitioner against the respondent No.4 a nd to submit a report to the Secretary, Fishery Department, Government of Assam, so as to enable the said authority to pass a speaking order in that regard. Su ch an enquiry shall be conducted by the Deputy Commissioner, Goalpara and the re port shall be submitted to the Secretary, Fishery Department, Government of Assa m within a month from the date of production of the certified copy of this order by the petitioner. The Secretary within a month thereafter, shall pass the spea king order as indicated above. It is needless to say that in the enquiry as wel l as in the proceeding before the Secretary, Fishery Department, all the concern ed parties including the petitioner and the respondent No.4 shall be given the r easonable opportunity of being heard. [10] The writ petition is accordingly disposed of. No costs.