JUDGMENT
Aftab Hussain Saikia, J.
1. Heard the learned Counsel for the parties.
2. This writ appeal has been directed against the judgment and order dated 19.2.07 passed by the learned Single Judge in W.P. (C). No. 6308/2006
3. The short and limited point canvassed before this Court pertains to as to whether the extension of the fishery in question can be granted in terms of Rule 8(b) of the Assam Fisheries Rules, 1953 (for short, the Rules’) after expiry of the lease period of settlement of the said fishery.
4. It would be relevant to outline the factual matrix of the case herein for proper adjudication of the issue raised in this writ appeal. Initially the fishery in question i.e., Brahmaputra Part III(A) was settled with the appellant and Respondent No. 4 on 22.2.90 on 50:50 basis for a period of 4 years w.e.f. 1.4.90 to 30.3.94. Later on, this Fishery was again settled with both the appellant and the respondent No. 4 on 29.4.94 on 50:50 w.e.f. 1.5.94 to 30.4.99 for another five years.
5. Be it mentioned herein that the fishery in question was a 60% fishery. In 1999, this 60% fishery, which was earlier settled on 50:50 basis with the appellant as well as respondent No. 4 as indicated above, was trifurcated and being a 60% fishery, in terms of proviso to Rule 12 of the rules the same was settled with three different co-operative societies. However, the said split up fishery into three parts was challenged before this Court by the appellant as well as the respondent No. 4 through W.P.(C) No. 2902/1999 and W.P.(C). No. 3289/1999 respectively and this Court by common judgment and order dated 27.5.04 while quashing the split up order of the fishery in three parts held that the fishery in question was a 60% fishery with the observation that the existing arrangement/settlement with the three different cooperative societies would not be disturbed till the lease period expired in the year 2006. It was also observed in paragraph 13 of the aforesaid common order that the petitioner therein/appellant herein would be at liberty to approach the State Government with necessary application and as and when such application was filed the same should be considered in accordance with law and the rules and regulations governing the matter within a time frame of three months.
6. Situated thus, the Government through the Deputy Secretary, Fishery Department by order dated 19.8.06 considering the report submitted by the Deputy Commissioner, Jorhat granted extension to the appellant in terms of Rule 8(b) of the Rules extending the period of settlement of 1990-1999 for another 4 years in favour of the appellant with effect from the date of delivery of possession of the fishery subject to observance of all formalities laid down in Government Order No. FISH 2/2000/172 dated 21.6.05. In arriving at such decision of extension, the competent authority observed that the petitioner sustained loss for a period of 17 years i.e. from 1981-1988 and 1990-1999 when the fishery was settled with him
7. Being aggrieved by such extension of settlement vide order dated 19.8.06 the respondent No. 4 moved this Court through the related writ petition and the learned Single Judge by the impugned judgment and order dated 19.2.07 quashed and set aside the impugned order of extension dated 19.8.06 holding that there could not be any extension after the expiry of the lease period and moreso, the fishery, being a 60% category, the appellant (respondent No. 4 in the related writ petition) an individual was not entitled to get any extension. Hence this writ appeal.
8. Assailing the impugned judgment and order passed by the learned Single Judge, Mr. P.C. Deka, learned Sr. counsel representing the appellant has advanced two fold arguments (1) the impugned extension is permissible in the terms of provision of Rule 8(b) of the Rules and (2) the settlement of the split up fishery to three different cooperative societies from 1999-2006 after trifurcation of the fishery in question was a nullity because during that period the settlement could not be said to be a valid one as the trifurcation of the fishery itself was set aside by the Court on 27.5.04.
9. Advancing his first argument, the learned Counsel has placed reliance on Rule 8(b) of the Rules. For the sake of convenience above Rule may be quoted:
8. Settling Authority, (a) …
(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 with, due to any natural cause or for any unavoidable reasons beyond the control of the lessees,, Government may extend the period of such lease supported by official reports as to the nature of cause in exceptionally special cases for a reasonable period so as to enable such lessees to make good the loss.
10. In view of the above rule, it is contended that the Government was justified in extending the period of settlement as indicated above in total consonance with the above provision which permits the Government to extend the period of settlement of the lease in exceptionally special case and according to him, taking into account the attending facts and circumstances of the case, it is an exceptionally special case for granting extension of the lease period and there was no illegality in the order passed by the Government extending the period of lease vide order dated 19.8.2006 and the learned Single Judge has, therefore, misconstrued the provisions of Rule 8(b) as reflected in the judgment itself.
11. Coming to the second argument as regards the nullity, strong reliance has been placed on a decision of the Apex Court (S.P. Chengal Varaya Naidu v. Jagannath) wherein the Apex Court had the occasion to deal with the word “nullity” and it was categorically held in paragraph 1 itself that a judgment or decree obtained by playing fraud on the court is a nullity and it could be challenged in any court even in collateral proceeding.
12. Supporting the impugned judgment and order, Mr. Bhuyan, learned Counsel has contended that it needs to be accepted that extension cannot be granted after the expiry of the terms of lease period and if any extension of settlement is to be made that can only to be initiated before the expiry of the term. That has not happened in this case. His stand is that immediately after the expiry of the said period i.e., on 30.4.99, the fishery in question was put to trifurcation and being a 60% fishery, the same was settled with three cooperative societies and when the said trigfurcation was set aside by this Court in W.P.(C) No. 2902 of 1999 along with analogous writ petition, it was clearly mandated that the existing arrangement/settlement which was going to expire in 2006 would not be disturbed. In such factual premises, the question of nullity as raised, does not arise at all.
13. We have given our anxious consideration to the extensive arguments so advanced by the learned Counsel representing the rival parties. We have also perused the entire relevant records including the impugned judgment passed by the learned Single Judge and the earlier settlement orders including the extension of settlement order dated 19.8.2006.
14. Coming to the first question of nullity, we My agree with the judicial pronouncement recorded in S.P. Chengal Varaya Naidu’s case (supra). It is true that the question of nullity of a decree can be raised in any Court even in collateral proceeding but such situation has not occurred in the instant case. Thus, the ratio laid down in the above cited case cannot be made applicable in the instant case. This Court by its common order dated 27.5.2004 as mentioned above recorded that the fishery in question was a 60% category fishery and the order dated 27.5.2004 was not challenged before any higher appellate forum for which the same has already attained its finality.
15. Now insofar as the question of extension of settlement period as provided under Rule 8(b) of the Rules is concerned an ordinary reading of the above mentioned provision of law clearly indicates that the period of lease on being supported by the Officer’s report can be extended in case of any natural cause or for any unavoidable reasons beyond control of the lessee in exceptionally special case. On the other hand, a close perusal of the order dated 19.8.06 does not reveal that the case of the appellant was considered for extension as an exceptional special case. It is amazing to note that the Government has given extension of the settlement period of 1990-1999 for another 4 (four) years in favour of the appellant from the date of taking possession of the fishery, meaning thereby after the order of 19.8.06 from any date when the fishery will be delivered to him. It candidly appears that the extension of the settlement period has been granted after the expiry of the terms of lease on 30.4.99. The provision of Rule as indicated above does not provide, in our considered opinion for any such extension within retrospective effect.
16. Given the attending facts and circumstances of the case in its totality, there cannot be any question for extension of lease in the present form when settlement period admittedly expired on 30.4.99.
17. In view of what has been observed arid discussed above, we are of the firm opinion that the impugned judgment and order deserves no interference. Consequently this writ appeal fails and stands dismissed at the admission stage itself.
18. Be it also pertinent to record herein that admittedly the fishery, being a 60% fishery, is not permissible to be settled with any independent person in view of the proviso to Rule 12 of the Rules which provides for settlement of 60% fishery only with special category of co-operative societies, non-government organizations and self help groups consisting of 100% actual fishermen in the neighbourhood of the fishery concerned by the Tender System.