ORDER
A.K. Patnaik, J.
1. The petitioner had been the sitting lessee of Nos. 4,5,6,7 and 8-Mandakuri/ Kurijan/Sessania/Hajosuti group Fishery of Kamrup District for the period 1994-97 and he submitted an application before the Minister, Department of Fisheries to give settlement of the said group of fisheries for the period of 7 more years on the ground that he suffered loss of Rs. 1,50,000/-. Though a report was called for from the Deputy Commissioner, Kamrup, on the said application of the petitioner, no order was passed by the Government setting the said group of fisheries in favour of the petitioner and instead by ‘ order dated 17-7-97 of the Government, the said group of fisherie’s were settled with Sri Basanta Kumar Das, respondent No. 4. Aggrieved, the petitioner has moved this Court under Article 226 of the Constitution for quashing the said order of settlement and for directing the State-respondents to settle the said group of fisheries in favour of the petitioner.
2. At the hearing, Mr. J.M. Choudhury, learned counsel for the petitioner, submitted that by the impugned order dated 17-7-97, the Government has found the petitioner equally eligible for settlement of the said group of fisheries and yet settled the said group of fisheries in favour of the respondent No. 4. He stated that no good reason has been recorded in the impugned order as to why the respondent No. 4 was settled with the aforesaid group of fisheries and not with the petitioner and therefore the impugned order of settlement was violative of his right to equality under Article 14 of the Constitution. Mr. Choudhury further contended referring to paragraph 7 of the writ petition that the respondent No. 4 was a worker of a political party, namely, Asom Gana Parishad and his case was recommended by the local MLA of the Asom Gana Parishad and this averment in paragraph-7 of the writ petition has not been denied in the affidavit-in-opposition filed by the respondent No. 4.
3. Mr. D.P. Chaliha, learned counsel for the respondent No. 4, similarly contended that the petitioner himself submitted his application for extension through the very same local MLA of Asom Gana Parishad. He further argued that the petitioner had been the sitting lessee of the said group of fisheries for last 12 years and equity demanded that the respondent No. 4 should be settled with the group of fisheries in question for
some period. According to Mr. Chaliha, out of all eligible applicants, the Government had to choose one eligible applicant for settlement and there was nothing wrong in the order of settlement in favour of the respondent No. 4 who was one of the eligible applicants. Mr. H.N. Sharma, learned Additional Senior Government Advocate, Assam, submitted that in the peculiar facts and circumstances of the case since the petitioner had been enjoying the group of fisheries in question for about 12 years, settlement in favour of respondent No. 4 was fair and equitable and cannot be quashed on the ground that it violates the right of the petitioner to equality under Article 14 of the Constitution. Mr. Sharma produced the records of the case.
4. Settlement of fisheries in the State of Assam is governed by the Rules for the settlement of Fisheries, 1953 made under Sections 155 and 156 of the Assam Land and Revenue Regulation, 1886 and Section 6 of the Indian Fisheries Act, 1897. The said Rules therefore are statutory rules and while making settlement of fisheries, the Government cannot depart from the said statutory rules. A bare perusal of rules 12 and 13 of the Rules for the settlement of Fisheries, 1953 would show that all registered fisheries are to be settled under tender system of sale except those cases which are governed by the proviso to Rule 12. But under the said proviso to Rule 12, settlement can be made by the Government directly without following the tender system only with the Fishery Co-operative Society and not with any individual. This has been explained by the Full Bench of this Court in the case of Arabinda Das v. State of Assam, (1982) 1 Gauhati LR 280 : (AIR 1981 Gauhati 18). In the said case, it was contended inter alia that the said proviso to Rule 12 made a departure from tender system of sale of fishery and was therefore arbitrary and the Court while rejecting the said contention observed that one of the pre-requisites for direct settlement under the said proviso was that the settlement should be made only with a fishery co-operative society. In my considered opinion, even though the group of fisheries in question were outside the 60% of fisheries reserved for settlement with fishery co-operative societies and belonged to the balance 40% of the fisheries which could be settled also in favour of an individual, any settlement in favour of any individual could be made
only by following the tender system as indicated in Rules 12 and 13 of the Rules for the settlement of Fisheries, 1953 and not directly by the Government in favour of respondent No. 4.
5. For the reasons stated above, the impugned order dated 17-7-97 sealing the group of fisheries in favour of respondent No. 4 is quashed and the Stale respondents are directed to settle the group of fisheries in question by following the tender system within a period of three months from today. Till such fresh settlement is made by following the tender system, the respondent No. 4 will however be allowed to operate the fishery. However, considering the facts and circumstances of the case, I leave the parties to bear their own costs.