WP(C) 4346/2010 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY The petitioner, who was the bidder for settlement of Bis wanath Brahmaputra and Baghmara Fishery, Biswanath Chariali pursuant to the Noti ce Inviting Tender dated 15th July, 2005, who, however, has not challenged the o rder of settlement dated 6th January, 2006 passed in favour of M/s Biswanath Kai borta Fishery Co-operative Society Limited, by the present petition is praying f or a direction to the Deputy Commissioner, Sonitpur to settle the said fishery i n his favour in terms of the order dated 22nd June, 2010 passed by the Commissio ner, North Assam Division, whereby and whereunder the order of settlement made i n favour of the said Cooperative Society, who is not a party respondent in the p resent writ proceeding, has been set aside on the ground of failure to fulfill t he terms and conditions of settlement and for non payment of the kist money and also on the ground of subletting, with a further direction to the Deputy Commiss ioner to settle the said fishery in favour of the petitioner for the remaining p eriod of settlement up to 26th November, 2013 (ought to have been 5th January, 2 013). I have heard Mr. M. Singh, the learned counsel for the p etitioner and Mr. G. Soren, the learned State Counsel appearing for the responde nts. Mr. Singh, the learned counsel for the petitioner has su bmitted that the settlement holder, namely M/s Biswanath Kaiborta Fishery Co-ope rative Society Limited, though settled with the fishery in question vide order d ated 6th January, 2006, passed by the Deputy Commissioner for the period from 6t h January, 2006 to 5th January, 2013, i.e. for 7 (seven) years, it has failed to pay the kist money and also sublet the fishery and as such, the Commissioner, N orth Assam Division pursuant to the representation filed by the petitioner cance lled the settlement dated 6th January, 2006 made in favour of the said Society a nd directed the Deputy Commissioner to settle the said fishery for the remaining period in favour of the petitioner, he being the highest bidder in respect of t he said fishery. It has further been submitted that the Deputy Commissioner ins tead of complying with the direction contained in the order dated 22nd June, 201 0 passed by the Commissioner, Lower Assam Division has written to the Commission er and Secretary to the Government of Assam in Fishery Department on 22nd July, 2010 seeking advice from the Government. According to the petitioner, the Deputy Commissioner is duty bound to follow the order passed by the Commissioner, Lowe r Assam Division and as such, the necessary directions may be issued to the Depu ty Commissioner to implement the order dated 22nd June, 2010 passed by the Commi ssioner, Lower Assam Division. Though no affidavit-in-opposition has been filed by the respondents, Mr. Soren, the learned State Counsel on the basis of the instructio n has submitted that the Commissioner, North Assam Division has no appellate jur isdiction to interfere with the order of settlement made by the Deputy Commissio ner and if the settlement holder has violated any terms and conditions of the se ttlement, it is for the settling authority to pass necessary order. According t o the learned State Counsel, even assuming that the Commissioner has the power t o interfere with an order of settlement, on the ground of violation of the terms and conditions of the settlement by the settlement holder, no order can be pass ed by the Commissioner directing settlement in favour of a person in the event o f such cancellation of settlement, as in that event the fishery in question has to be put to resale as required under Rule 8(e) of the Assam Fishery Rules, 1953 (in short, 1953 Rules). The learned State Counsel, therefore, submits that no direction, as sought for in the present writ petition, can be issued to the Depu ty Commissioner directing him to settle the fishery in question in favour of the petitioner. I have considered the submissions of the learned counsel for the parties and also perused the pleadings in the writ petition, apart from the annexures appended thereto. It is not in dispute that the Deputy Commissioner issued the NIT on 15th July, 2005 for settlement of the fishery in question. Pursuant to such NIT, the petitioner as well as the aforesaid Society submitted their bi ds. According to the petitioner, though he was the highest bidder, settlement w as made in favour of the said Society by the Deputy Commissioner on 6th January, 2006 for a period of 7 (seven) years with effect from 6th January, 2006 to 5th January, 2013. The said order of settlement has never been challenged by the pe titioner before any authority. No appeal under Rule 11 of the 1953 Rules has al so been preferred by the petitioner. The petitioner thereby has accepted the or der of settlement made on 6th January, 2006 in favour of the said society. However, the petitioner sometimes in the month of June, 2010 filed a representation before the Commissioner, North Assam Division conten ding that the settlement holder, i.e. the aforesaid Society, has violated the te rms and conditions of the settlement by not depositing the kist money in time an d by subletting the fishery settled with it. A further prayer was also made to settle the fishery for the remaining period of settlement with the petitioner af ter canceling such settlement granted in favour of the said Society. The Societ y, i.e. the settlement holder, is not party to the present proceeding. The Commissioner, North Assam Division thereafter, passe d the order dated 22nd June, 2010 canceling the settlement order dated 6th Janua ry, 2006 issued in favour of the M/s Biswanath Kaiborta Fishery Co-operative Soc iety. A further order has also been passed directing the Deputy Commissioner to pass the order of settlement in favour of the writ petitioner for the remaining period of settlement, i.e. upto 5th January, 2013 (though wrongly recorded as 2 6th November, 2013). In the present petition, the issue as to whether the Com missioner was justified in passing the order relating to the cancellation of the lease issued in favour of the aforesaid Society is not required to be gone into , since that part of the order has not been put to challenge. Moreover, as noti ced above, the settlement holder, i.e. the aforesaid Society, is not a party res pondent in the present proceeding. The issue, which involves in the present proceeding is - whether the Commissioner, North Assam Division can pass an order directing the Deputy Commissioner to pass an order of settlement in favour of the present peti tioner, after canceling the order of settlement made in favour of the aforesaid Society dated 6th January, 2006 and consequently whether a direction can be issu ed by this Court to the Deputy Commissioner to issue such order of settlement in terms of the directions issued by the Commissioner vide his order dated 22nd Ju ne, 2010. Since the petitioner has claimed issuance of writ of man damus directing the Deputy Commissioner to issue the order of settlement in term s of the said order dated 22nd June, 2010 passed by the Commissioner, the Court has to scrutinize the legality and validity of such a direction issued by the Co mmissioner. Rule 8(e) of the 1953 Rules provides for resale of the f ishery in the event of cancellation of the settlement made in favour of a party on the ground of default in payment of kist money or for violation of any condit ions of the fishery lease including any of the provisions contained in the Rules . The proviso to said Rule stipulates that the question of such resale shall no t be applicable where the State Government permits extension of time for payment of kist money. When the Rule specifically provides for putting the fish ery for resale in the event of cancellation of the settlement order made in favo ur of the settlement holder on the ground of failure to deposit the kist money o r for violation of the conditions of the lease or any of the provisions of the R ules, the Commissioner has no power and authority to pass an order directing the Deputy Commissioner to settle the fishery in favour of the petitioner for the r emaining period, which is apparently in violation of the Rule 8(e) of the Rules. That being the position, the direction, as sought for in the present writ petition, cannot be issued. The writ petition is devoid of any merit and hence dismi ssed. No cost.