Page No.# 1/10 GAHC010152922025 2025:GAU-AS:9483-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/224/2025 SHRD LUCHY WELFARE FOUNDATION, REGISTERED OFFICE KUBAIKATA DHANIABHETI, P.O. DHANIABHETI, DIST. NAGAON, ASSAM, REPRESENTED BY ITS DIRECTOR NO. 2 SIRAJ UDDIN AHMED (49 YRS), S/O LATE ABDUL GOFUR SARKAR, VILL. KUBAIKATA, P.O. DHANIABHETI, DIST. NAGAON, ASSAM. VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE ADDITIONAL CHIEF SECY. TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI 06 2:THE CHIEF EXECUTIVE OFFICER NAGAON ZILLA PARISHAD NAGAON P.O. AND DIST. NAGAON ASSAM PIN 782001 3:THE EXECUTIVE OFFICER DHING ANCHALIK PANCHAYAT P.O. DHING DIST. NAGAON (ASSAM) PIN 782123 4:THE SECRETARY DHANIABHETI GAON PANCHAYAT P.O. DHANIABHETI Page No.# 2/10 DIST. NAGAON ASSAM PIN 782123 5:THE ADDITIONAL DIST. COMMISSIONER (REVENUE) NAGAON P.O. AND DIST. NAGAON ASSAM PIN 782001 6:THE CIRCLE OFFICER DHING REVENUE CIRCLE P.O. DHING DIST. NAGAON (ASSAM) PIN 782123 7:THE OFFICER IN CHARGE BATADRAVA POLICE STATION P.O. BATADRAVA DIST. NAGAON ASSAM PIN 78212 Advocate for the Petitioner : MR H R A CHOUDHURY, B DAS,MR. A H M R CHOUDHURY,MR. A M AHMED Advocate for the Respondent : GA, ASSAM, SC, REVENUE,SC, P AND R.D. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 23.07.2025 (K.R. Surana, J) Heard Mr. H.R.A. Choudhury, learned senior counsel, assisted by Mr. A.M. Ahmed, learned counsel for the appellant. Also heard Mr. S. Dutta, learned standing counsel for Panchayat Department, representing respondent Page No.# 3/10 nos. 1 to 4 and Mr. H.K. Hazarika, learned Govt. Advocate, representing respondent nos. 4 to 7. 2) By filing this Intra-Court appeal, the appellant, who is the writ petitioner in W.P.(C) 3343/2025, has assailed the order dated 25.06.2025, passed by the learned Single Judge in the said writ petition, thereby disposing- off the same, however, after holding the temporary settlement of the Kubaikata Beel Fishery as illegal and not sustainable and thereupon, setting aside the alleged temporary settlement of the said fishery with the appellant for three months from 01.04.2025 to 31.07.2025. 3) In brief, the case of the appellants is as follows:- a. The erstwhile Batradava Anchalik Panchayat had issued a Notice Inviting Tender (NIT for short), amongst others, in respect of the said Kubaikata Beel for the Panchayat year 2024-25 from 01.07.2024 to 30.06.2025. b. However, vide notification no. eCF No. 221100 dated 29.06.2024, issued by the Principal Secretary to the Govt. of Assam, Panchayat and Rural Development Department (P&RD for short), all ongoing process of settlement of Hats/ Ghats/ Fisheries/Pounds, etc., for which tenders were floated, were cancelled. c. The said notification dated 29.06.2024 was put to challenge in a number of writ petitions and this Court, by a common order dated 30.07.2024, passed in W.P.(C) 3649/2024 and connected writ petitions, directed the Government authorities not to extend the period of settlement of the Markets/ Hats/ Ghats/ Fisheries/Pounds, etc. (as applicable to respective writ petitions) any further without calling for Page No.# 4/10 the tender and further, the authorities were directed to run and manage the Markets/ Hats/Ghats/Fisheries/Pounds, etc. departmentally. d. The Dhing Anchalik Panchayat issue a short tender notice for settlement of Kubaikata Beel for three months from 01.04.2025 to 30.06.2025 for an amount of Rs.30,000/- (Rupees Thirty thousand only). Accordingly, vide order no. B.A.P./30/S/BB/Part-1/2024-25/90 dated 28.03. 2025, issued by the Dhing Anchalik Panchayat, the said fishery was settled with the appellant for the said period. e. However, vide notification bearing eCF No. E-634285/04 dated 28.03.2025, issued by the Additional Secretary to the Govt. of Assam, Fishery Department, inter alia, prohibition was imposed on catching of brood fish of certain species in any proclaimed fishery from 01.05.2025 to 31.07.2025 under Rule 23-A(1), and catching and killing of fishes of certain species between in any proclaimed fishery 01.08.2025 to 31.10.2025 under Rule 23-A(2) of the Assam Fishery Rules, 1953. As per the said notification, the said prohibition is aimed at ensuring natural breeding, propagation and growth of fish in all fisheries and natural water bodies. f. The further case of the appellant is that it was submitted before the learned Single Judge that the Kubaikata Beel is not a proclaimed fishery as provided under Rule 1(A) of the Assam Fishery Rules, 1953 and therefore, there cannot be a prohibition in fishing. However, it has been submitted that said issue was not decided, though the writ petition was disposed-off against the appellant. Page No.# 5/10 4) Accordingly, in this intra-court appeal, the appellant has prayed, inter alia, to (ii) set aside and quash the order dated 25.06.2025, passed by the learned Single Judge, in so far as it relates to the setting aside of the order of lease in respect of the Kubaikata Beel made in favour of the appellant; (ii) grant at least one month time to the appellant so that it can complete fishing and if required, with effect from the date of expiry of the fishing restriction imposed vide notification dated 28.03.2025; grant all the reliefs as prayed for in the writ petition. 5) The submissions of the learned senior counsel for the appellant were in terms of what has been referred hereinbefore. It was submitted that the appellant that without deciding as to whether the Kubaikata Beel is a proclaimed fishery under Rule 1(A) of the Assam Fishery Rules, 1953, the temporary settlement of the said the Kubaikata Beel in favour of the appellant could not have been set aside. 6) The learned standing counsel for the P&RD has submitted that under Section 109(1) of the Assam Panchayat Act, 1994, the settlement of all fisheries of an Anchalik Panchayat can be settled for period coinciding with not exceeding one Panchayat financial year by inviting tenders at the office of the Anchalik Panchayat by the President. 7) Therefore, it has been submitted that in any event, the period of fishery under the previous NIT would have otherwise come to an end with the closure of Panchayat Financial Year 2024-25 on 30.06.2025, the extension of the period of settlement of fishery beyond 30.06.2025, would be illegal. In support of his submissions, the learned standing counsel for the respondent nos. 1 to 4 has cited the case of Farida Khanom v. The State of Assam & Ors., reported in 2024 GAU(AS) 11948: (2024) 0 Supreme(Gau) 1674. Page No.# 6/10 8) Considered the submissions and carefully perused the materials available on record in the memo of appeal. 9) One of the grievance expressed by the learned senior counsel for the appellant is that though it was urged before the learned Single Judge that the Kubaikata Beel is not a proclaimed fishery as provided under Rule 1(A) of the Assam Fishery Rules, 1953 and therefore, the notification bearing eCF No. E-634285/04 dated 28.03.2025, issued by the Additional Secretary to the Govt. of Assam, Fishery Department, cannot be applied to prohibit fishing in the said Kubaikata Beel, however, the said issue was not decided. 10) Before dealing with the said point urged by the learned senior counsel for the appellant, it is deemed appropriate to refer to the provisions of Section 109 and 122 of the Assam Panchayat Act, 1994. The said provision is extracted below:- “109. Settlement of fisheries and distribution of proceeds thereof (1) Save as otherwise provided in this Act or rules framed thereunder, all fisheries of an Anchalik Panchayat shall be settled by the Anchalik Panchayat in the manner prescribed for a period coinciding with or not exceeding one Panchayat financial year by inviting tender at the office of the Anchalik Panchayat by the President. (2) Detailed procedure for inviting and submission of such tenders shall be such as may be prescribed. (3) The powers of examination and final acceptance of such tenders shall be vested in the Standing Committee referred to in S. 52 (i) (a). (4) All settlements made under sub-S. (3) shall be subject to the confirmation of Zilla Parishad: Provided that in case of any dispute, the Anchalik Panchayat may refer such cases to the Government and the aggrieved party may appeal before Government whose decision in this regard shall be final; Provided further that as and when deemed necessary, the Government may intervene in the matter of a particular settlement and its decision in this regard shall be final. (5) All sale proceeds of public fisheries shall be deposited in the Anchalik Panchayat fund and Page No.# 7/10 shall be distributed in the manner hereinafter provided: (a) twenty per cent of the total sale proceeds of Anchalik Panchayat fisheries shall be made over to the Zilla Parishad fund; (b) forty per cent of the total sale proceeds of the Anchalik Panchayat fisheries shall be retained with the Anchalik Panchayat fund; (c) forty per cent of the total sale proceeds of Anchalik Panchayat fisheries shall be distributed equally among the Gaon Panchayats falling within the jurisdiction of the Anchalik Panchayat. (6) The hats, ferries and fisheries falling under any Anchalik Panchayat within the jurisdiction of Zilla Parishad, the yearly sale value of which is more than rupees one lakh shall be settled by the Zilla Parishad concerned for a period coinciding with and not exceeding one Panchayat financial year as under Ss. 105, 106 and 109 in the manner prescribed. The powers of examination and final acceptance of such tenders shall be vested in the Standing Committee as under S. 81 (1) (a). The distribution of sale proceeds shall be in the manner as prescribed in the foregoing sections. * * * 122: Direction from Government (1) Notwithstanding anything contained in this Act, it shall -be lawful for the Government to issue directions to any Panchayat in matters relating to State and national policies and such directions shall be binding on the Panchayat, (2) The Government may— (a) call for any record or register or other document in possession or under the control of any Panchayat; (b) require any Panchayat to furnish return, plan, estimate, statement, accounts or statistics; and (c) require any Panchayat to furnish any information or report on any matter connected with such Panchayat.” 11) In the case of Farida Khanom (supra), this Court had examined the provisions of Article 243G and 243H of the Constitution of India, relating to Panchayats and held that Section 122 of the Assam Panchayat Act, 1994 should be read with the Constitutional Scheme as envisaged in Part IX of the Constitution of India. Moreover, it was held that from the provisions of Rules 11, Page No.# 8/10 12, 13 and 47 of the Assam Panchayat (Financial) Rules, 2002, a right would be created when there is a concluded contract and that a concluded contract would only arise when there is a formal lease entered into. We express our approval of the said finding by the learned Single Judge in the case of Farida Khanom (supra). In the present case in hand, it is not the pleaded case of the appellants that any lease between the competent authority and the appellant was entered into in respect of the fishery in question, being Kubaikata Beel. 12) In the said case, the provision of Section 105 of the said Act was being considered, which related to settlement of Hats. The said provision of Section 105 is para-materia to the provision of Section 109 of the said Act. 13) The rules and procedures of settlement of markets, ferries, fisheries and ponds is covered by the provision of Rule 47 of the Assam Panchayat (Financial) Rules, 2002. As it is the admitted case of the appellant that in respect of the said fishery, short tender notice was issued, it cannot be said that the authorities in the Dhing Anchalik Panchayat had followed the mandate of Rule 47 of the aforesaid 2002 Rules. 14) Under the circumstances, as the learned Single Judge, having regard to the provisions of Rule 47(2) of the Assam Panchayat (Financial) Rules, 2002, held that the said provision was not adhered to, this appellate Bench is unable to find any error whatsoever with the decision of the learned Single Judge in setting aside the temporary settlement of the Kubaikata Beel with the appellant and in directing that the provision of Rule 47 of the said 2002 Rules is required to be adhered to. 15) Coming to the issue raised by the learned senior counsel for the appellant regarding non-applicability of notification dated 28.03.2025, on the Page No.# 9/10 ground that the Kubaikata Beel was not a proclaimed fishery, in the opinion of the Court, if based on the said notification dated 28.03.2025, the authorities in the Panchayat and Rural Development Department, in its wisdom, has implemented stay of fishing even in non-proclaimed fishery, in view of the breeding season for fish, the decision cannot be said to be hit by the Wednesbury’s principle of unreasonableness, when coupled with the fact that in settling the Kubaikata Beel with the petitioner, the provision of Rule 47 of the 2002 Rules have not been scrupulously followed. However, no conclusive decision is rendered thereon. However, no conclusive decision is rendered thereon. Therefore, under the facts and circumstances of the present case in hand, the discussion on whether or not the Kubaikata Beel is a proclaimed fishery and whether the notification dated 28.03.2025 would be applicable on the said fishery appears to be only academic and therefore, the said question is left open to be decided in a more appropriate case. 16) This Court, in the case of Assam State Electricity Board v. Sri Surya Kanta Roy, (1994) 1 GLR 383: (1993) 0 Supreme(Gau) 190 (para-4), had examined the point as to when interference with the order passed by the learned Single Judge is called for in intra-court appeals. Accordingly, it was held the appellate court will not interfere with the discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversity or where the court has ignored the settled principles of law. The said principles is required to be followed in the present case in hand because if the settlement of Kubaikata Beel with the appellant is found to be not in accordance with law, other issues strenuously urged by the learned senior counsel for the appellant need not be examined. 17) Accordingly, this intra-court appeal fails and accordingly, this Page No.# 10/10 appeal is dismissed at the “admission” stage without issuance of notice upon the respondents. JUDGE JUDGE Comparing Assistant