Holding

The proviso to Rule 12 applies to members of the Maimal Community of Cachar District irrespective of their place of residence, making them eligible for direct fishery settlement.

Summary

The appellant, a fishery cooperative society in Darrang District, consisted of members belonging to the Maimal Community of Cachar District. The society sought direct settlement of fishery rights under the proviso to Rule 12 of the Assam Fishery Rules, which provides such settlement to societies formed by 100% actual fishermen belonging to Scheduled Castes or the Maimal Community of Cachar District. The High Court Division Bench held that the benefit was confined to members residing within Cachar District, dismissing the society’s claim. The Supreme Court examined the language of the rule, emphasizing that the purpose was to aid backward and economically deprived classes, not to impose a geographical restriction, and held that "of the Cachar District" denotes origin, not residence. Consequently, the Court allowed the appellant’s appeals, set aside the Division Bench order, and restored the Single Judge’s view that members of the Maimal Community residing outside Cachar are eligible for the benefit.

Issues considered

Whether the proviso to Rule 12 of the Assam Fishery Rules is limited to members of the Maimal Community residing within Cachar District.
Whether the Maimal Community can be treated as a Scheduled Caste for the purpose of fishery settlement.
Whether backwardness and economic deprivation, rather than place of residence, are the decisive criteria for eligibility under the rule.

Subjects

Fishery RulesRule 12Maimal CommunityScheduled CasteBackward classesGeographical limitationCooperative societyFishery settlementInterpretation of statutory language

Judgment

M/S. BAGHOPURI M.M SAMBA! SAMITI A
v.
ST A TE OF ASSAM AND OTHERS

MARCH 30, 1999

[S. RAJENDRA BABU AND S.N. PHUKAN, JJ.] B

(ASSAM) FISHERY RULES:

Rule 12, Proviso-Expression 'Maimal Community of the Cacher
District'-Jnterpretation of-Applicability of the benefit outside the District- C
Held : Area of operation is not confined to any particular geographical
region-Hence the benefit would be applicable to Maimal Community of the
Cachar District even though they may be residing outside the District.

Appellant-society is situated in Darrang District and is comprised of
members permanently residing in Darrang District and who belong to Maimal D
Community of the Cachar District. Proviso to Rule 12 of the Fishery Rules
provides that a fishery co-operative society consisting of members belonging
to Scheduled Caste of the State or Maimal Community of the Cachar District
is eligible for direct settlement of fishery rights subject to the conditions
specified therein. A Writ petition was presented in the High Court of Gauhati E
challenging the settlement of fishery in favour of the appellant on the ground
that the benefit to members of Maimal Community under proviso to Rule 12
is restricted to Geographical limit ofCachar District only and the members
of the appellant- society belonging to Maimal Community who are settled
outside the District of Cachar cannot get the benefit of direct settlement
under the proviso; and that Maimal Community cannot be equated with the F
Scheduled Castes community for the purpose of getting settlement of the
fishery under the proviso to Rule 12 in other parts of the State of Assam.

Single Judge disposed of the writ petition holding that Maimal
Community of the Cachar District were members of the society and since G
the object of the proviso to Rule 12 was to help the backward classes by
giving them protecti~n and economic help, the members of the Maimal
Community of Cachar District were entitled to the benefit even though they
- may be residing outside the district. The Single Judge formulated three
questions and directed the Government to consider and to give settlement of
the fishery in question after considering the questions. Both the appellants H
275
•

276 SUPREME COURT REPORTS [1998) 2 S.C.R.

' A and the respondents preferred appeals against the Order of the Single
Judge.

Division Bench of the High Court allowed the appeals filed by the
respondents and dismissed the appeals filed by the appellants. It held that
members of the Maimal Community must reside within the geographical
B limit of Cachar District to become entitled to the benefit under provisio to
Rule 12 and cannot carry the claims or privileges under the Rule outside
Cachar District; and therefore, the appellant-society was not eligible to
claim fishery rights under the Rule. Hence these appeals.

The appellant-society contended that their members belong to the Maimal
C Community ofCachar District and they fall into a class which is described
in the proviso to Rule 12 and are entitled to seek the benefit of registered
fishery under the Rule without any geographical limit being placed on them.

Allowing the appeals, the court
D
HELD : 1. Backwardness and economic deprivation were the main
criteria for giving the benefit under the Fishery Rules and not the place of
residence. [277-G]

Arabinda Das v. State ofAssam & Ors., AIR (1981) Gauhati 18, referred
E to.

2. The interpretation of the provisio to Rule 12 turns upon the exact
language used by the Government. When area of operation of a notification
is not confined to any particular geographical region the areas referring to
persons belonging to a community of a particular district would only be the
F words of description and in such cases the term "or• has to be taken as
denoting origin or descent of the persons belonging to a particular community
of an area. Ultimately it means that they hail from a particular area and
recognises them as belonging to that particular district and not more.
[283-C-D}

G CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4672-74 of
1998.

From the Judgment and Order dated 16.7.97 of the Assam High Court
in W.A. Nos. 393, 458 and 471 of 1996.
--
H P.K. Goswami, Kailash Vasdev for the Appellant
BAGHOPURI M.M. S.S. v. STATE [RAJENDRA BABU, J.] 277
U. Hazarika for S.M. Jadhav, Vijay Hansaria, (S.K. Jain) for Mis Jain A
Hansaria & Co., (Pravir Choudhary) (NP) for the Respondents.

The Judgment of the Court was delivered by

RAJENDRA BABU, J. These appeals are filed against an order made
by the Government of Assam by which certain fishery rights were settled in B
favour of the appellant by an order dated April 20, 1994. The said order was
challenged in writ petitions. The learned Single Judge, who heard the matter,
set aside the order of the Government and remanded the matter to the
Government for settlement applying the correct principles of law. Again on
April 5, 1995, the appellant society applied for settlement of fishery. The C
Deputy Commissioner, Darrang cancelled the settlement of fishery made with
the appellant society and thereafter a writ petition was presented in the High
Court ofGauhati challenging the settlement of fishery in favour of the appellant.
The contention put forth before the High Court was that the appellant did not
fulfil the requirements of direct settlement under the proviso to Rule 12 of the
Fishery Rules inasmuch as the said society was formed with the members D
belonging to Maimal Community who are not entitled to direct settlement.
This community had been recognised and notified for Cachar District only
and cannot be equated with the Scheduled Castes community for the purpose
of getting settlement of the fishery under the proviso to Rule 12 in other parts
of the State of Assam. The learned Single judge disposed of the writ petitions E
and as regards the applicability of the proviso to Rule 12 to the Maimal
Community observed that the appellant society was situated in Darrang
district and was formed with persons belonging to Maimal Community and
the members of Maimal Community in the Cachar District are backward and,
therefore, they need protection and economic help. The aim of proviso to Rule
12 is to give the benefit of a fishery to a cooperative society formed with F
I 00% actual fishermen of the fishing population belonging to Scheduled
Caste or Maimal Community. Backwardness and economic deprivation were
the main criteria for giving the benefit and not the place of residence and
though the members of the appellant belonr;ed to the Maimal Community of
, Cachar District now they were permanently residing in Darrang District and G
they could not be deprived of getting the benefit of proviso to Rule· 12.
I;Jowever, he directed the Government to consider and to give settlement of
the fishery in question, after considering the following questions:

(i) Whether the claimant-fishery cooperative society is formed with
100% actual fishermen of the fishing population belonging to H
278 SUPREME COURT REPORTS [1998] 2 S.C.R.

A Scheduled Caste or Maimal Community ~f Cachar District;
(ii) Whether the members of the said society live in the
neighbourhood of the fishery in question; and
(iii) Whether the said society fulfils the other terms and conditions
necessary for giving settlement.
B
Appeals were carried against the said order. The Division Bench of the
High Court which considered the matter took the view that the Mairnal
Community of C~char District had been put at par with other Scheduled
Caste of the State as notified by the President by public notification under
C Article 341 of the Constitution. The list of Scheduled Castes as notified by
Presidential order can neither be added nor substracted by any other authority
except Parliament.

The precise question that arose for consideration was whether the
Mairnal Community who settled outside the district of Cachar was entitled
D to any preferential treatment or protection. In other words, whether the
benefit under proviso to Rule 12 is restricted to geographical limit of the
Cachar District, or it can be availed of even out of the Cachar District. On
this aspect of the matter, the Division Bench held that while there could be
no inhibition for a member of SC/ST 111igrating but a member of Scheduled
E Caste or Tribe when migrates does not ~d cannot carry any right or privileges
attributed to him or granted to him in the original State and on parity of
reasoning _extended the same to the Mairnal Community of the Cachar District.
Even if the community is treated as backward, as has been observed by the
learned Single Judge, and, therefore, in need of protection and economic
help the members thereof cannot claim or carry the privileges outside the
F
.
Cachar District and on that basis allowed the appeals filed by the
'
respondents
and dismissed the appeal filed by the appellant and took the view that the
appellant was not eligible to claim fishery rights. It is against this part of the
order that these appeals have been filed.

G In order to correctly appreciate the issue involved in this case, we may
set out the relevant provisions of the Rules. Rules 8, 12 and 13 read
as follows:

Rule 8 :

H "(a) Settling Authority. The Deputy Commissioner or the Additional
BAGHOPURI M.M. S.S. v. STATE [RAJENDRA BABU, J.] 279

Deputy Commissioner in case of Sadar Division and Sub-Divisional A
Officer in case of other Sub-divisions shall be the authorities for
settlement of all registered fisheries under tender system of sale in
their respective jurisdiction.

(b) Extension of the term of lease, (i) Where the period of lease of
registered fisheries being ordinarily not less than three years is B
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.
c
(ii) The State Government may also, on the recommendation of the
Director of Fisheries extend the period of lease of a fishery with an
intending pisciculturist who should invariably be the sitting lessee
and who agrees to accept such an extension at a revenue and for such
other additional terms and conditions as may be ·specified by D
Government:

(iii) Provided that one of the conditions of extension of lease against
piscicultural plan shall invariably be the Implementation of approved
scheme or schemes of development and improvement of such a
fishery at the lessee's own cost within a target period to be fixed by E

- Government.

The order of extension of lease on the aforesaid grounds, passed by
the State Government shall be final and no appeal shall lie against
such orders of extension.

(c)..... . F
(d) ..... .

(e) Re-sale offisheries. When for default kist money or for violation
of any of the conditions of the fishery lease including any of the
provisions of these Rules by a lessee the fishery shall be put to re- G
sale under tender system at the risk of original lessee. Notice of re-
sale shall be given as in the case of the original sale with the additional
proviso that the re-sale shall be at the risk of and on account of the
original lessee.

Provided that the question of such re-sale shall not be applicable H
280 SUPREME COURT REPORTS [1998] 2 S.C.R.

A where State Government permits extension of time for payment of kist
money."

Rule 12

"Except those referred to in sub-rule No. 8(b) above, all registered
B fisheries shall be settled under tender system of sale in place of sale
by auction.

Provided that the State Government may settle any registered
fishery, otherwise than under tender system, with a fishery cooperative
society frame with 100 per cent actual fishermen of the fishing
C population in the neighbourhood of the fishery concerned and
belonging to Scheduled Caste of the State or Maimal Community of
the Cachar District at a revenue calculated and for a period decided
by the State Government from time to time."

Rule 13
D
(a) "With prior approval of the State Government not more than 60
per cent of the fisheries in a sub-division available for settlement
in a year shall be selected for sale under tender system only wjth_
the Cooperative Fishery Societies formed with 100 per cent share
holders from members of actual fishermen belonging to the
E Scheduled Caste of the State and/or Maimal Community of the
District of Cachar and registered under the Assam Cooperative
Societies Act, 1949. Settlement of all such fisheries tenders of
which have been accepted under ~.5 shall be with the highest
---
tender.
F (b) The remaining fisheries in the sub-division available in that year
under tender system of sale, shall remain open for settlement to
.all communities including Co-operative Societies as referred to
in Sub-R(a) above.

(c) Cooperative Fishery Society by members of actual fishermen
G belonging to the Scheduled Castes/ Maimal Community/
Scheduled Tribes/other Backward Classes and registered under
the Assam Cooperative Societies Act, 1949, shall be given option -
to accept settlement of fisheries of the category as mentioned
in sub-R.(b) above at the highest tender; provided that their
H tender is within 7-'h. per cent of the highest tender.
BAGHOPURI M.M. S.S. v. STATE [RAJENDRA BABU, J.] 281

~- (d) When the tenders for fisheries failling within the category referred A
to Sub-R.(b) above are below 7-112 per cent of the highest tender
(i) Co-operative Societies as stated in sub-R.(c) above, (ii)
individual members of actual fishermen belonging to the
Scheduled Castes/ and other Backward Classes who may offer
tenders not less than 60 per cent of the highest tender, may be
given option to take settlement of the fishery at the highest bid, B
.....-- in the order of preference stated above subject suitability of the
tenderer,
(e) When a fishery referred in sub-R.(b) above fetching a tender not
exceeding Rs. 50,000 per annum is settled with any individual
member from actual fishermen belonging to the Scheduled c
Castes, Scheduled Tribes/Maimal Community or other Backward
Classes the tenderer shall be entitled to a rebate of 7-112 per
cent as concession. But when a fishery fetching a tender not
exceeding Rs. one lakh (Rupees one lakh) per annum is settled
with any Cooperative Fishery Society formed by members from D
communities as stated above, the tenderer society shall get a
rebate of ten per cent as concession :
Provided that I 00 per cent rebate as aforesaid shall not be
available to Cooperative Fishery Society formed with 100 per
cent shareholders from actual fishermen belonging to the E-
Scheduled Castes of the State and the Maimal Community of
- \
the District of Cachar if they accept settlement of fisheries as
stated in Sub-R.(a) above;

Provided further that such shall not be admissible in case any
individual or Cooperative Fishery Society of any protected
F
community offers the highest tender.

(f} Any tenderer claiming the concession provided in this rule shall
indicate the same in his tender."

The validity of the said rules had been challenged in the
G
Gauhati High Court in Arabinda Das & etc, v. State of Assam
& Ors., AIR (1981) Gauhati 18. In that case, the background in
which the said Rules were framed was considered and it was
noticed that the Rules can be framed in terms of the Assam Land
& Revenue Regulations and the successive amendments of the
Rules made from time to time indicated the anxiety of the H
282 SUPREME COURT REPORTS [1998] 2 S.C.R. -
.•.
A Government to give a better deal to deserving persons, namely,
the cooperative societies formed by actual fishermen by settling
more and more fisheries with them, the emphasis being that the
Government was more concerned with providing work to the
actual fishermen to improve their lot than deriving revenue to

-
the exchequer. After analysing the various rules it was noticed
B as follows:
"On a careful perusal of the proviso to Rule 12 we find that the
exercise of the power under it is not arbitrary. There are
prerequisites which must be satisfied before the power of direct
settlement can be exercised by the State Government under the
c proviso. These prerequisites are that :
(a) a settlement of a registered fishery can only be made with
·.~
a fishery cooperative;
(b) formed with hundred per cent actual fishermen of fishing
population;
D
(c) in the neighbourhood of the fishery concerned;
(d) belonging to the Scheduled Castes of the State or Maimal
Community of the Cachar District; and
(e) at a revenue calculated and for a period decided by the State
E Government from time to time."
If we bear these principles in mind, the interpretation of proviso to
Ru~ 12 becomes easy. It is unnecessary to examine the question whether
the appellants belong to any backward class or Scheduled Caste when
specifically the rule stated that persons belonging to Maimal Community of
F the Cachar District become eligible to apply for settlement of the registered
fishery. Now the interpretation of the said provision turns upon the exact
languag~ used by the Government. The fact that the appellant society consists
of members belonging to Maimal Community of the Cachar District is not
in dispute. Their case is that their members belong to the Maimal Community
G of the Cachar District and they fall into a class which is described in the
relevant rules and thus become entitled to seek the registered fishery. The
learned Single Judge did not indulge in any exercise in semantics as to the
expression "Maimal Community of the Cachar District" and as to whether
the operation of the said rule is confined only to Cachar District or outside
but on the basis that the Maimal Community of the Cachar District were
H members of the society and the object of the rule being to help the backward
BAGHOPURI M.M. S.S. v. STATE [RAJENDRABABU, J.]
~J
283
classes they were entitled to t~e same even though such persons may be A
residing outside the district. The Division Bench of the High Court laid
emphasis on the expression "of the. Cachar District" and, therefore, took the
view that they must belong to the Maimal Community and must reside within
the district to become entitled to the benefit of the rule. Now we may advert
to the policy adopted by the Government of Assam in the matter of backward B
classes in the communication No. TAD/DC/268/75/37 dated November 27,
1975. We may notice that there are certain communities which are recognised
only in a particular area geographically. In respect of others, all that is stated
is "Kumar; Rudra Paul of Cachar" while in case of Rajbonshi or Koch (Koch
of Goalpara and Garo Hills only). Specific mention is made as confined to
a particular area. When area of operation of a notification is not confined to C
any particular geographical region the areas referring to persons belonging
to a community of.a particular district would only be the words of description
and in such cases we will have to take the term "of' as denoting origin or
descent of the persons belonging to a particular community of an area.
Ultimately it means that they hail from a particular area and recognises them
belonging to that particular district and no more. Therefore, the view taken D
by the learned Single Judge of the High Court appears to us to be more
reasonable and appropriate than the view taken by the Division Bench of the
High Court. During pendency of the matter before the competent authority
the benefit of interim order granted by this Court shall continue until disposal
of the matter. On this reasoning, we allow the appeals filed by the appellant E
and set aside the order made by the Division Bench and restore that of the
learned Single Judge.

The appeals are allowed accordingly. Considering the nature and
circumstances of the case, there shall be no order as to costs.
F
AT. Appeals allowed.