Patna High Court - Orders
Ajay Sahni vs The State Of Bihar & Ors on 30 April, 2010
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.1246 of 2009
Ajay Sahni, Son of Sukeshwar Sahni, Resident of Village Ashogi, P.O.
Badaulbaj, P.S. Purnahia, District Sheohar, Secretary Purnahia
Prakhand Matsyajivi Sahyog Samiti Ltd., Purnahia.
-------- Appellant
Versus
1. The State of Bihar.
2. The Department of Animal Husbandry & Fisheries, Bihar, Patna.
3. The Departmental Commissioner, Department of Animal
Husbandry & Fisheries, Bihar, Patna.
4. The Collector-cum-Chairman, Piparadhi Fisherman Cooperative
Society, District Sitamarhi.
5. The Director Fisheries, Bihar, Patna.
6. The District Fisheries Officer-cum-Chief Executive Officer,
Sitamarhi.
7. The Deputy Director Fisheries (Range), District Sheohar.
8. Dukhan Sahni, Son of late Lalchand Sahni, Resident of Village
Belwa Narkatia, P.S. Pipradha, District Sheohar, Secretary
Fisherman Cooperative Society Ltd., Pipradhi Block, Sheohar.
---------- Respondents
-----------
For the Appellant :- Mr. Nitiranjan Jha, Adv.
Mr. Rakesh Kumar Jha, Adv.
For the Respondent :-
----------
PRESENT: Hon'ble the Chief Justice
Hon'ble Mr. Justice Mihir Kumar Jha
ORDER
(30/04/2010)
As per Mihir Kumar Jha, J.
I.A. No. 6176 of 2009
Having heard learned counsel for the appellants and also
taking into account the reasons mentioned in this application, we are
satisfied that the delay of five days in filing of the appeal is fit to be
condoned.
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2. I.A. No. 6176 of 2009 is accordingly allowed.
L.P.A. No. 1246 of 2009
3. Since we have condoned the delay in filing of the appeal, we are
also inclined to dispose of this appeal on merits at the admission stage
itself. We have accordingly heard learned counsel for the appellant at
length.
4. This intra court appeal is directed against the order of the learned
single Judge dated 21.7.2009 allowing the prayer made in the writ
application C.W.J.C. No. 15106 of 2008 filed by the respondent no.8
having a prayer to quash the order of the District Fisheries Officer,
Sitamarhi, dated 12.8.2008, canceling the settlement of 22 of 44 Jalkars
made in favour of the Fisherman Co-operative Society, Pipradhi Block,
Sheohar vide letter no. 429 dated 7.9.2006 for the period 2006-07 to
2010-11 with a consequential direction for settlement of the remaining 22
Jalkars situated in Purnahia Block with the newly constituted society
known as Fisherman Co-operative Society Purnahia Block, Sheohar in
terms of the instructions issued by Director of Fisheries.
5. Mr. Niti Ranjan Jha, learned counsel for the appellant while
assailing the order of the learned single Judge has taken a stand that in
terms of the Section 7 of the Bihar Fish Jalkar Management Act, 2006
(hereinafter to be referred to as 'the Act'), the settlement of 44 Jalkars
including 22 others in favour of Fisherman Co-operative Society,
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Purnahia Block by an order of the Director, Fishery dated 7.9.2006 was
itself void and illegal and therefore, the impugned order passed by the
District Fisheries Officer on 12.8.2008, canceling settlement of 22 Jalkars
situated in Pipradhi Block with a consequential decision for its settlement
in favour of Purnahia Fisherman Co-operative Society represented by the
appellant, Secretary ought to have been not interfered by the learned
Single Judge.
6. Learned counsel for the appellant in this context has submitted
that under the Act, there is a provision for settlement of Jalkars on the
basis of the Block and therefore, the 22 Jalkars situated in Purnahia could
not have been allowed in favour of the Fisherman Co-operative Society,
Purnahia Block and in any event, such settlement even if made on
account of absence of the Fisherman Co-operative Society for Purnahia
Block in the year 2006 could not have been allowed to be continued on or
after 12.11.2007 the date on which a separate Fisherman Cooperative
Society for Purnahia Block was registered. He is thus quite specific in
this regard that the decision for cancellation of the settlement of 22
Jalkars of the district under the orders of the District Fisheries Officer
suffers from no infirmity, inasmuch as, the Director of Fisheries on being
informed of formation and registration of Fisherman Co-operative
Society in Purnahia Block had rightly issued an order on 28.7.2008
directing for settlement of 22 jalkars of Purnahia Block in favour of the
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Fisherman Co-operative, Society, Purnahia Block represented by the
appellant.
7. In this context, he has also placed reliance on a Division Bench
Judgment of this Court in the case of Bhawanipur Fisherman's Co-operative
Society & Anr. Vs. The State of Bihar & Ors. reported in 1995(1)PLJR 366 as
also the judgment of the Apex Court in the Civil Appeal No. 3448 of
1996 (Bhawanipur Fisherman's Cooperative Society & Anr. vs. The State
of Bihar & Ors.) dismissing the appeal and affirming the order of the
Division Bench in Bhawanipur Fisherman's Co-operative Society
(supra).
8. In the light of the aforesaid submissions and the findings
recorded by the learned single Judge in the impugned order to which we
will refer at appropriate place, the first and foremost question which
would arise for consideration is as to what is the prescribed procedure
and scope of short term settlement under the Act.
9. This Court on scanning the provisions of the Act would find
that the State Legislature for providing the provisions for a better and
organised settlement of Jalkars under the control of the Department of
Animal Husbandry and Fisheries of the Government of Bihar has laid
down an elaborate mechanism wherein from 4th May, 2006 onwards
when the Act came into force, the Jalkars in Section 3 of the Act were to
be classified Block wise in which compilation was to be made in the
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District Fisheries Office containing the details of such Jalkars
Panchayatwise, Village-wise, name of jalkars, Khatiyani area, watershed
area, production and reserve deposits. Section 4 provides for the mode
and manner of fixation of Reserve Deposits on the basis of annual
production capacity of Jalkars and Section 5 lays down that the Jalkars
would be of two types, namely, short term settlement for a period of five
settlement years and the long-term settlement of Jalkars will be for ten
settlement years. Section 6 provides for mode and manner of Long Term
Settlement whereas Section 7 provides the mode and manner of Short
Term Settlement. Section 6 & 7 for our purpose reads interalia:-
6. Long Term Settlement:-
(i) A long term settlement of Jalkars of water area up to four
hectares shall be done only with trained fisherman/ or
trained fishermen self help group selected by the
„Managing Committee". The long term settlement may be
done of only those Jalkars which fulfill at least one of the
following condition:-
a. The jalkar which has been declared Parta or is in the
process of being declared Parta.
b. The Jalkar which has an average depth of less than four
feet deep between 15th December to 15th January and
there may be a possibility of perennial water retaining
capacity by increasing its depth.
c. The Jalkar in which there is a possibility of increasing
its water retaining capacity by developing
embankments.
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d. The Jalkar in which there is a possibility of increasing
its water retention capacity upto 50% by making
improvement in the water approach system of the
Jalkar.
e. The Jalkar pertaining to which letter of consent is
received from any financial institution, Bank of
Government for financial assistance for its proper
development.
(ii) The information of date and place for the Long Term
settlement of selected jalkars shall be sent to the following
by the registered post:
a. All fisherman Co-operative Societies under whose area
of operation the jalkar is situated.
b. The Mukhia of the concerned Panachayat.
c. The State Level Fisherman Co-operative Federation
and
d. The Block Development Officer, Circle Officer,
Divisional Deputy Director (Fisheries), Deputy
Development Commissioner and Collector with a
request to display it on the notice board of their offices.
(iii) In the notice to be issued for settlement the name of jalkar,
full address, amount of Reserve deposit and period of
settlement shall be mentioned. This notice shall be issued
at least twenty one days before the date of settlement.
(iv) The beneficiaries shall be selected by the "Managing
Committee" at the rate of one acre per fisherman member.
A group leader will be nominated by the "Managing
Committee" in case more than one, beneficiaries are
selected.
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(v) For the long term settlement, the District Fisheries Officer
shall receive applications only from those trained
fishermen who are residents of the same Block in which the
jalkar is situated. If there are more than one trained
applicant, the jalkar shall be settled with fisherman or
group of fishermen whose residence is nearest to the jalkar.
(vi) After settlement the Collector will create charge on the
jalkar5 for obtaining loan.
(vii) The settlement with the beneficiaries shall be made with the
following terms:
a. It shall be compulsory to execute the registered
agreement, within one month of the issue of the
settlement order. Expenses incurred on registration
shall be borne by the beneficiaries.
b. It shall be compulsory to deposit the total amount of
reserve deposit of one year within 15 days of the issue
of sanction order of the settlement. During the period
of settlement the total amount of reserve deposit of
every year shall be deposited prior to 15th July.
c. It will be compulsory for the beneficiary to develop the
jalkar within 2 years from the date of issue of the
settlement order.
d. In case of violation of any of the terms of settlement by
the beneficiaries. The Collector may cancel the
settlement but the beneficiary shall be given an
opportunity to be heard before taking such a decision.
7. Short Term Settlement :-
i. Excluding the jalkars selected for Long Term Settlement, Short Term
Settlement of all other jalkars shall be made on the Serve Deposit
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amount with the non-defaulter Fishermen Co-operative Societies
operating with the geographical area of the Block or to members of
disqualified Fishermen Co-operative Societies.
ii. The competent authority for the approval of short term settlement of
the jalkar, shall be the following:-
a. The District Fisheries Officer for the jalkars of Annual Reserve
Deposit upto five thousand.
b. The Deputy Director of the range for all the jalkars of Annual
Reserve Deposit more than Rupees five thousand and up to
twenty thousands.
c. The Director Fisheries for all the jalkars of Annual Reserve
Deposit more than twenty thousands and up to one lakh rupees.
d. Settlement of all the jalkars of Annual reserve deposit more than
one lakh rupees shall be approved by the state governments.
Provided that the State Government shall have the power to
redetermine the above limit of prescribed amounts after and
interval of every five years by notification published in the
official Gazette.
iii. It will be compulsory for the Fishermen Co-operative Societies to
enclose following documents with their application to District
Fisheries Officer for settlement of jalkars.
a. A proof relating to the payment of current year audit fee and
Audit report of the previous two years, issued by the co-operative
department.
b. A certificate of last election and a proof regarding areas of
operation of the society.
c. A proceeding of Annual General Meeting of the preceding year
in which there should be a clear description of settlement made
with members by the society.
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d. With the approval of the Managing Committee of the society, a
village wise and Panchayat wise list of jalkars along with the
names of the applicant fishermen member/members with whom
the settlement is proposed. If the settlement of any jalkar is
proposed with more than one member then the name of the group
leader.
iv. For ensuring the settlement, the District Fisheries officer shall send
a notice Block wise with information of date, place future settlement
and proportion of jalkars in their share in all concerned fishermen
Co-operative societies by registered post before 31st March. The
copy of this information shall be given to the Collector, Deputy
Development Commissioner, Additional Collector Concerned Sub-
divisional Officers. Circle Officers, Block Development Officers
Pramukh of Panchayat Samiti with a request to display it on the
Notice Board of their offices. For Singhara & Makhana-cum-fish
jalkars this notice shall be sent before 30th June.
v. It shall be compulsory for Fishermen Co-operative Societies to
submit their application in the office of District Fisheries Officer
with all enclosures before 30th April for short term settlement. But in
special Circumstances, for reasons to be recorded in writing, the
Collector may give a direction to District Fisheries Officer to
receive application from the society by 31st may. The last date of
submitting application for the settlement of Singhara & Makhana-
cum-fish jalkar, shall be 31st July. In special circumstances for
reasons to be recorded in writing the collector may give direction to
District Fisheries Officers to receive application from the society by
31st August.
vi. Application with all relevant documents shall be examined by the
District Fisheries Officer within 15 days from the date of receipt of
these applications. If an application is found defective, an
information through registered post shall be sent by the District
Fisheries Officer giving 15 days time to concerned societies for
correction of defects. If no information in respect of defects is given
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to the society by the end of four weeks from the date of receipt of the
application, it will be deemed that the society is competent to get
settlement.
vii. If the original or corrected application submitted by the society for
settlement is found free from defect, the order for settlement of
jalkars shall be issued to society by the District Fisheries Officer
before 15th June. After 15th June, but such order, can be issued only
with the prior approval of Collector Order for settlement for of
Collector Order for settlement for Singhara & Makhana-cum-Fish
jalkar, may be issued by the District Fisheries Officer before 15th
September but after 15th September, such order may be issued only
with the prior approval of collector.
viii. If more than one Fishermen Co-operative Societies are desires for
settlement of jalkars in a Block, then settlement of jalkars shall be
made among them then in proportion of the number of all classes of
jalkars and the number of the members of them.
ix. The share of the jalkars of disqualified societies of a block shall be
settled for five years by limited bid with the non-defaulter members
of that society residing in the same block where the jalkar is situated.
But only one jalkar shall be settled with one person.
x. Even if jalkar is not settled after two attempts by a limited bid then it
shall be settled by open bid according to provision laid down in
section-8.
xi. Reserved Deposit jalkars of more than fifteen thousand rupees shall
be done by limit/open bid for five years under the Chairmanship of
the Deputy Director Fisheries of the Range.
xii. The Settlement shall be made on the following conditions:-
a. If sum total of Reserve deposit of settled jalkars is less than
twenty thousand rupees, the total amount shall be deposited in
one installment within twenty one days of settlement.
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b. If sum total of Reserve deposit of settled jalkars is more than
twenty thousand rupees, 50% of the total Reserve deposit amount
of twenty thousand rupees which ever is more shall be deposited
within twenty one days of the settlement and second installment
shall be deposited before 31st January but for Singhara &
Makhana-cum-fish jalkar, 2nd installment shall be deposited
before 31st March.
Provided that facility of payment of total Reserve deposit
amount in two installments shall be given only to those societies
which have also given the facility of payment of total amount in
two installments to their members.
c. If the amount is not deposited by the fixed date, the District
Fisheries Officer shall immediately issue show cause notice to
the society and after 15 days of the showcause shall cancel the
settlement. If the settlement is cancelled these jalkars shall be
settled with the members of the society as per the provision of
sub-section(9) of section 7 of this act.
d. The amount of Reserve deposit fixed the settlement of jalkars
with members by societies shall not be more than 15% of the
amount of Government reserve deposit.
e. Within twenty one days of settlement, the society shall make
available to the District Fisheries Officer, Parwana issued along
with a village-wise and Panchayatwise list of amount received
for settlement from its fisherman/fishermen members. Issuance
of a provisional Parwnaa shall be prohibited.
Provided that if the settlement is in contravention of the
provisions of section 10 of this Act, the Parwana shall be issued
only after due correction of that settlement of that particular
jalkar as per provision of section 10.
f. It will be the responsibility of the District Fisheries Officer to
enter into a registered agreement with the society within two
weeks of issuing Parwana.
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Provided that after lapse of the said period, order for
executing agreement may be given by Collector after obtaining
explanation. In a situation where agreement is not executed in the
extended period, settlement may be cancelled by District Fisheries
Officer after the approval of Collector and after asking show cause
from the society. Expense incurred on registration shall be borne
by society.
g. The Reserve Deposit amount shall be deposited after
incorporating the annual percentage increase in the Reserve
Deposit Amount as recommended by the Reserve Deposit
Fixation Committee.
h. On the demand of District Fisheries Officer and his senior
Departmental officers, the Society will make available for
inspection of records/Register/papers concerning with
distribution of jalkars.
i. In case of violation of the terms of settlement, the District
Fisheries Officer may cancel the settlement with prior approval
of the Collector, but, before obtaining the approval of the
Collector the society shall be given an opportunity to defend its
case and to take corrective steps.
j. If society refuses to take settlement of a particular jalkar or all
jalkars before the expiry of the current settlement period and
enclose resolution of its managing committee with its
applications then settlement of this/ these jalkars shall be
cancelled for the next financial year and settled by limited bid for
the valid period of reserve jama as per procedure laid down in
section 8.
10. Section 8 provides for settlement of Jalkars by limited bid and
Section 9 lays down that the Short Term Settlement of Jalkars situated in
a Block shall be done together in the same settlement year for five years
13
and if the settlement of Jalkar/Jalkars is cancelled before completion of
the period of five years, then its settlement shall be done again within two
months for the remaining period of five years. Section 10 of the Act
provides for distribution of Jalkars wherein the society interested in
settlement of the Jalkar is required to submit an application upon enlisting
all the applications of its members willing to take settlement of Jalkars.
Section 11 talks of declaration of Parta i.e. such Jalkars which remains
unsettled after two limited bids. Section 12 provides for deciding the
claims of reschedulement/remission of the amount of settlement in favour
of the society whereas Section 13 enumerates the provision for fishing
prohibition. Under Section 14 of the Act, there is a provision for appeal
and revision against the decision taken by the District Fishery Officer and
Deputy Director of Fishery and in this respect, it has to be noted that an
appeal against all decision regarding short term settlement taken by the
District Fishery Officer and Deputy Director has to be filed before the
Director of Fishery within a period of 30 days of the original order and
has to be disposed of within two months essentially after giving
opportunity of hearing to the parties concerned. Section 15 gives power
to the State Government to make Rules for implementation of all or any
of the provision of the Act and Section 16 bars the jurisdiction of any
Civil and Revenue Court in respect of the dispute concerning settlement
of Jalkars. Section 17 of the Act defines offences and the penalties
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whereas Section 18 lays down the manner of taking cognizance of the
offence. Section 19 of the Act is with regard to the power of the State
Government for removal of difficulty in the implementation of the
provision of the Act and in Section 20 all the departmental rules, orders,
circulars concerned with the settlement of Jalkars management and
appeal which are contrary to the provision of the Act have been repealed.
11. We have made the aforesaid resume of the whole scheme
under the Act in order to test the submission of the learned counsel for
the appellant as to whether the settlement of 44 Jalkars made on 7.9.2006
under the order of the competent authority under the Act, namely, District
Fishery Officer, Sitamarhi in favour of the society represented by the
respondent no.8, namely, Pipradhi Fisherman Co-operative Society was
in any way vitiated or contrary to the provision of the Act. In this regard,
the first and foremost admitted fact to be noted is that Pipradhi Fisherman
Co-operative Society represented by the respondent no.8, the writ
petitioner was registered on 17.9.1982 and it claims to have its fisherman
members of not only Pipradhi Block but also that of Purnahia Block
which in the year 1982 was only part of the old Pipradhi Block inasmuch
as it is an admitted fact that the Purnahia Block came into existence in the
month of June, 1993 after being carved out from old Pipradhi Block and
from 1993 to 12.11.2007, there was no Fisherman Co-operative Society
for Purnahia Block. In such a situation, if two adjacent Blocks, namely,
15
Pipradhi Block and Purnahia Block which were one and the same till
1993 before its being bifurcated had been functioning with the members
of both the Blocks under the aegis of the Pipradhi Fisherman Co-
operative Society, there would be no legal obstacle in such functioning
because no law provides that the moment a new block is created, its
member loose a right to continue to be the member of the old Fisherman
Co-operative Society for availing the benefit of the settlement under the
Act. The moment it is accepted by the appellant that Purnahia Fisherman
Co-operative Society was registered only on 12.11.2007 i.e. almost one
and half years of the Act come into force, he (appellant) cannot be heard
to say that either the 22 Jalkars of Purnahia Block ought to have been not
settled in the year 2006 with the Respondent no. 8 in terms of Section 7
of the Act.
12. It has to be kept in mind that the whole scheme under the Act
is to give promotion and/or preference to the Fisherman Co-operative
Society in the matter of settlement over private individuals or ineligible
Fisherman Co-operative Society. The scheme of the Act and specially
Section 6 & 7 thereof also clearly envisage that whenever settlement of
Jalkars have to be made, all Fisherman Co-operative Society of the
concerned block under whose area a Jalkar is situated are to be given the
information of the date an place for such settlement. Section 7(i) in this
context assumes importance which lays down that short term settlement
16
of jalkars shall be made on the Reserve Deposit amount with the non-
defaulter Fisherman Co-operative Societies operating within the
geographical area of the Block or to the members of disqualified
Fishermen Co-operative Societies. Since, there was no Fisherman Co-
operative Society in the month of June, 2006 in Purnahia block when the
process of short term settlement had been initiated for settlement of 22
Jalkars in Pipradhi Block and 22 Jalkars in Purnahia Block, this Court
would find no error in the initial settlement made in favour of the society
represented by the respondent no.8, namely, Fisherman Co-operative
Society Pipradhi Block. In fact, this aspect has also been admitted by the
appellant himself by stating in the memo of appeal in the following
terms:-
"2(A) There is a Fishermen Cooperative Society namely Fishermen
Cooperative Society Ltd., Pipradhi Block, Sheohar, petitioner
respondent no.8, registered under the Bihar Cooperative
Societies Act, 1935. Its area of operation is confined to the
administrative territory of Pipradhi block in the district of
Sheohar. Adjacent to it is the Purnahia block of the same district
which was carved out of the Pipradhi block in June 1993.
(B) The Fishermen Cooperative Society Pipradhi was registered on
17.9.1992. Although the area of operation of this society did not extend to the Purnahia Block, the jalkars situated in the latter used to be settled with the former on account of the fact that until 12.11.07 there was no Fishermen Cooperative Society in the Purnahia Block. However, on 12.11.07 the appellant Society was registered under the Bihar Cooperative Societies Act, 1935 with the whole of Purnahia Block in its area of operation." 17
13. Thus on a conjoint reading of the aforesaid two paragraphs of the memo of appeal, it would be very clear that when the Fisherman Co- operative Society, Pipradhi was registered on 17.9.1982, its area of operation also included the geographical limits of Purnahia Block and members of Purnahia block at time in absence of formation of Purnahia block had a right to become member of the Fisherman Cooperative Society, Pipradhi.
14. Let it be noted that the issue involved in the writ application was not at all related to bifurcation of the members of Pipradhi Fisherman Co-operative Society on account of registration of a new society on 12.11.2007 under the name and style of Purnahia Fisherman Co-operative Society rather the issue was that the settlement which as already made for 44 jalkars, 22 situated in Pipradhi Block and the other 22 situated in Purnahia Block at a point of time when there was no Fisherman Co- operative Society for Purnahia Block was valid and whether the same could have been disturbed/curtailed automatically on account of the formation of a new society.
15. In the opinion of this Court, the situation which was created on account of the settlement of 44 jalkars of the two blocks by the order of the settlement passed by the District Fishery Officer on 7.9.2006 on the basis of which an agreement was also entered into on 9.12.2006 enumerating all the 44 jalkars to be part of such Short Term Settlement 18 for a period of five years i.e. from 2006-07 to 2010-11 could have been curtailed only if there was violation of any terms and conditions of such settlement as provided under the Act and/or the agreement itself. Neither the Act nor the agreement infact envisage cancellation of such settlement on account of formation of a new Fisherman Co-operative Society for Purnahia Block and therefore, the order of the Director of the Fisheries dated 28th July, 2006 advising the District Fishery Officer for making settlement of the jalkars situated in the geographical limit of Purnahia Block for rest of the period in favour of Purnahia Fisherman Co-operative Society in accordance with the provision of the Act was itself in excess of the powers conferred on the Director of the Fishery under the Act.
16. In this context, it has to be noted that barring a power of entertaining and deciding the appeal under Section 14 of the Act, the Director, Fisheries has no power to issue any direction. Section 14 reads as follows:-
"Appeal and Revision : - (i) An appeal against all decisions regarding short term settlement taken by District Fisheries Officer and Deputy Director may be filed before the Director Fisheries.
(ii) An appeal against of all decisions taken by Collector and Director Fisheries may be filed in the Court of Departmental Commissioner.
(iii) An appeal against all decisions regarding short term settlement taken by the Government may be filed in the Court of Member, Board of Revenue.
(iv) Appeal may be filed within thirty days from the date of the original order. The appeal shall be disposed of within two months essentially after giving an opportunity of hearing to the parties concerned under the process fixed by the Government.19
In the disposal of appeal, no interim order/stay order shall be passed. No investment shall be made in the disputed Jalkars by any party in the period on an appeal."
Admittedly, no appeal was filed by the appellant before the Director, Fisheries against such settlement made in favour of the society represented by the respondent no.8 on 7.9.2006 nor the same could have been filed by the Appellant in view of the time limit of only one month from the date of such settlement which expired on 6.10.2006, whereas the cause of action for the appellant for claiming any right of settlement of 22 Jalkars of Purnahia Block had arisen for the first time only on 12.11.2007 when a new Fisherman Co-operative Society had been registered exclusively for Purnahia Block. Here, in this case, the appellant after registration of the Purnahia Society on 12.11.2007 had infact filed a representation directly to the Director, Fishery and on that without there being any order as with regard to the cancellation of the existing settlement dated 7.9.2006 for a period of five years in favour of the society represented by the respondent no.8, namely, Fisherman Co- operative Society, Pipradhi, an executive fiat was issued by the Director, Fisheries by his order dated 28.7.2008 for settlement of the 22 jalkars falling within the geographical limits of Purnahia Block on the ground of formation of the new society on 12.11.2007.
17. It is well settled that a higher authority cannot dictate his subordinate authority in exercise of his statutory powers conferred on him 20 under a statute. Reference in this regard may be made to the judgment of the Apex Court in the case of The Purtabur Company Ltd. Vs. Cane Commissioner of Bihar & Ors. reported in AIR 1970 SC 1896 wherein the Supreme Court noticing the provisions of Sugarcane Control Order delegating powers of Central Government to State Government of Bihar and Cane Commissioner of Bihar and an order passed by Cane Commissioner altering reservation of cane area of cane sugar on a direction of Chief Minister had held that the order was that of the Chief Minister though in the name of Cane Commissioner and Chief Minister being not recognized authority under the Sugarcane Control Order, the order passed by the Cane Commissioner was held to be invalid by making the following observations:-
"--------The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.------"
18. In the case in hand, there is infact an identical situation as would be evident from the two communications one of the Director, Fishery dated 28th July, 2008 which in its English rendering would read as follows:-
"Letter No. 2045 Director of Fishery, Bihar, Secretariat Talab, Patna.
Dated 28th July, 2008 21 From Sri R.N. Chaudhary, Director of Fishery, Bihar, Patna.
To, The District Fishery Officer cum Chief Executive Officer, Sitamarhi.
Sub. Settlement of jalkars situated under Purnahia Block in the district of Sheohar with fisherman Co-operative Purnahia. Sir, With reference to the aforesaid subject, I am herewith while enclosing the letter of Sri Ajay Sahni, Secretary, Purnahia- Block Fisherman Co-operative, Purnahia,, I have to say that a new Block of Purnahia- has been carved out from Pipradhi- Block and a new committee has also been formed in Purnahia- Block.
Accordingly, the jalkars situated in Purnahia Block for rest of the period may be made with newly formed Fisherman Co- operative Society, Purnahia- in accordance with the provisions of the Act.
Yours faithfully, Sd./-
eligible, R.N.Chaudhary, Director of Fishery, Bihar, Patna."
19. It is the aforesaid letter of the Director, Fishery which led to the impugned order passed by the District Fisheries Officer, Sitamarhi dated 12.8.2008 which again for the sake of clarity and convenience in its English rendering produced hereinbelow:-
"Letter no. 523/fishery From, District Fishery Officer cum Chief Executive Officer, Sitamarhi To, Sri Dukhan Sahni.
Secretary, Pipradhi Block Fisherman Cooperative Society, Ppradhi, Bihar.
Sub. Settlement of jalkars situated in Purhania- Block of the Sheohar district.22
Ref. letter no. 2045 dated 28.7.2008 of Director of Fisheries, Bihar, Patna.
Sir, On the aforementioned subject, I have to inform you that earlier on account of there being no registered society in Purhania block and the Ppradhi block Fisherman Cooperative Society having also members of Purnahia block, short term settlement for the period 2006-07 to 2010-11 had been made in favour of your society vide this office letter no. 429 dated 7.9.2006 for jalkars situated in Pipradhi and Purnahia block.
Let it be known that now Purnahia block Fisherman Cooperative Society has already been registered for Purnahia block. Thus, in view of the order under reference of the Director, Fishery, the settlement made for 22 jalkars in favour of your society for the jalkars situated in Purnahia block is being cancelled from the year 2008-09 for its being settled in favour of the newly formed Purnahia block Fisherman Cooperative Society for the rest of the settlement period. You are also requested that you should now direct all the members of Purnahia block to become members of the Purnahia block Fisherman Cooperative Society so that the distribution of jalkars made by him to the members of Prnahia block could be continued.
Yours faithfully, Sd.
Chief Executive Officer cum Chief Fishry Officer cum Chief Executive Officer, Fishery Development Authority, Sitamarhi.
Enclosure:- List of jalkars."
It would thus be clear that the cancellation of 22 jalkars for the period 2008-09 onwards i.e. for three out of five years of settlement already made in favour of the respondent no.8 on 7.9.2006 was cancelled on account of the direction given by the Director of Fisheries in his letter dated 28.7.2008 on the ground of formation of a new society.
23
20. In our considered opinion, the formation of a new Fisherman Co-operative Society at Purnahia infact cannot be a ground for cancellation, inasmuch as, neither the Act postulates such a situation nor the term of agreement do contain any such condition. Cancellation of existing settlement and that too under the order of superior authority who has been given no statutory power save and except to hear the appeal was not patently illegal and without jurisdiction but also in violation of the principles of natural justice. Admittedly, the respondent no.8, the writ petitioner was not given any notice or opportunity of hearing before passing of the order by the Director Fisheries. The learned single Judge, therefore, was absolutely justified in relying on the provision of the agreement entered into between the society represented by the respondent no.8 and District Fishery Officer as has been quoted in-extenso in the impugned order recording the following findings:-
"The agreement as well as the Act provides that once the Jalkars are settled for a period of five years, then the society in question will continue to enjoy the benefits of reaping the fruits of such settlement for five years unless the society is a defaulter or has acted in any manner contrary to the Bihar Fish Jalkar Management Act, 2006.
Recently, this Court has come across cases in which the Jalkars which are settled for five years for a short term period are unsettled because of one reason or the others. Mostly because some other society who was earlier a defaulter has paid up the defaulted amount and therefore claims that it has now become eligible to take settlement for the remaining years.
In my view, once a settlement is made for a period of five years, parwana issued and there is no violation of the terms and conditions of 24 the Act, such settlement should not be ordinarily disturbed except for extra-ordinary reasons. Merely because any other society which is a defaulter has now paid up its dues or as in the instant case, a society has come into the existence during the pendency of the five years of the agreement, such a society would not become eligible to take settlement for the remaining settlement period if all the Jalkars have been settled. It would infact mean that the agreement has no meaning and sanctity and as such it would appear that no meaning would be attached to the fact that settlements of Jalkars are made for a period of five years within one or the other society. It is not that for each of the five years of the short term settlement period that a separate notice or procedure is adopted for making fresh settlement rather the parwanas are issued in pursuance of the agreement with the society in question. Therefore, disturbing the society in the middle of the settlement period would actually lead to a great loss to the Society in question, as each society naturally builds up a Jalkar so that it can enjoy fishing and use of the Jalkar for five years without being disturbed by intervening circumstances unless there is violation of the provisions of the Acts which govern the field.
Learned Counsel appearing on behalf of respondent no. 8, on the other hand submits that his society come into existence on 12.11.2007 in the Purnahia block and, therefore, the society would be entitled to get settlement of the Jalkars in the Purnahia block as it is the only society in the said block.
Undoubtedly, the respondent society would be entitled to take settlement for the Purnahia block in view of the fact that it is the only society in the said block. However, the date on which the procedure started for the settlement and till the actual date when the agreement was made, the respondent society had not come into existence and, therefore, it would not be proper for the Authorities to pass an order for settlement of the Jalkars in favour of the respondent society in the middle of the settlement period."
21. Learned single Judge in fact was also fully justified in placing reliance on the order of this Court in the case of Katra Anchal Matsyajivi 25 Swablambi Samiti Ltd. Vs. The State of Bihar & Ors. reported in 2004(2)BLJ 65 wherein somewhat similar situation with regard to the cancellation of the existing settlement on the ground that the other defaulter society had cleared its dues and thus it become entitled for settlement for the remaining period was repealed by the learned single judge in the following terms:-
"-------I have perused the materials on record and considered the submissions of learned Counsel for the parties. It appears to me that Respondent No.9 was not eligible for consideration on the date of the aforesaid two settlements in favour of the petitioner. Therefore, sub-sequent deposit of the dues cannot entitle him for reconsideration, nor will it empower the respondent authorities to cancel the settlement finally made in favour of the petitioner. The two batch of settlements were for a period of three years each, namely, for the periods 2001-04 and 2002-05. Settled affairs cannot be permitted to be unsettled in the manner as has been done by the respondent authorities. The same could have been cancelled if the petitioner itself was disqualified on the date of the settlement or on account of serious procedure irregularities or because of having incurred any disqualification after the settlement. The settlement so made cannot be cancelled on the ground that another Co-operative Society has later on become eligible. I must state the purpose of Parwana. It appears to me that the short-term settlement of jalkars is normally made for a period of three years, and the Parwana is issued year after year mainly for the reason that the settlee is enable to deposit the reserve Jama year after year. Many of them may not be able to deposit the reserve Jama for the three yeas at a time. Such Co-operative Societies after all are comprised of poor fisherman. The impugned action of the respondent-authorities is bad in law----".
22. The said judgment in the case of Katra Anchal Matsyaijivi Swablambi (supra) on being assailed in appeal before a Division Bench in L.P.A. No. 704 of 2003 was affirmed by an order dated 11.8.2003 26 recording interalia:-
"This appeal is directed against the order dated 21.7.2003 by which writ application filed by the writ petitioner-respondent was allowed and the order dated 13.5.2003 (Annexure-19 to the writ application) canceling the settlement of 90 Jalkars in his favour has been quashed.
As we fully agree with the order passed by the learned single Judge it is not necessary to state the reasons in detail. Suffice it to say that admittedly the settlement was made in favour of the writ petitioner respondent. The appellant who was respondent in the writ application was defaulter at the time of settlement and in fact not eligible to participate in the settlement. Later on he made payment and on that ground steps were taken and settlement in favour of writ petitioner respondent was cancelled. In our view, when on the relevant date the appellant was not eligible for taking settlement because of having been defaulter payments made subsequently will not be a ground to cancel the concluded settlement. The agreement which is said to have entered subsequently between the parties is of no help to the appellant for the reason that according to the writ petitioner-respondent the agreement was for the subsequent period in question and this view has been accepted by the learned Single Judge.
In the result, there is no merit in this appeal and the same is dismissed."
23. The order of the learned single judge and the Division Bench in the case of Katra Anchal Matsyaijvi Swablambi (supra) on being assailed in Special Leave Petition No. 18672 of 2003 was affirmed by an order dated 7.11.2003 dismissing the Special Leave Petition in limine.
24. This Court, therefore, is satisfied that the cancellation of settlement made in favour of the respondent no.8 as with regard to the 22 jalkars of Purnahia Block was wholly illegal and was rightly interfered by the learned single Judge by allowing the writ application. 27
25. The reliance placed by the learned counsel for the appellant on the judgment of this Court in the case of Bhawanipur Fisherman's Co- operative Society & Anr. (supra) is wholly misplaced. In that case, the issue in question was an order of the Minister Incharge of the Co- operation dated 31st July, 1994 directing termination of the membership of 88 members of Bhawanipur Fisherman Cooperative Society and the consequential report of the District Cooperative Officer dated 22.9.1994 recommending termination of the membership of the aforesaid persons. In this context, the Division Bench had held as follows:-
"------- As noted above, the area of operation has been mentioned as Sikta Thana i.e. Sikta Police Station. In other words, when the society was established, its area of operation extended to the entire geographical limits of Sikta Thana as it then stood. It was possible to describe the area of operation by mentioning the Panchayats or the villages comprising Sikta Thana. Had that been the position, the contention that without effecting corresponding amendment in the bye-laws excluding certain Panchayats or villages from the area operation the area could not be reduced, could be accepted. But where the area of operation is described not Panchayat-wise or village-wise but Thana-wise and the area of Thana is reduced, it cannot be said that although area of the Thana has been reduced, the area of operation of the society would remain the same, as before. With the change (reduction) in the area of Thana, the area of operation of the society is automatically reduced. In that sense, the area of operation of the society and the area of Sikta Thana would be deemed to be co-terminus. Any other interpretation would be violative of the provisions of section 8 of the Act. It is true that section 8 lays down the condition of membership at the time of registration; nevertheless, the provisions as contained therein are enough indication of legislative 28 intent. If the legislative intent is to confine the membership to such persons who reside in the town or village or group of villages (which may be known as Thana), whatever be the unit, it cannot be said that although after change in the area of town, village or Thana the person does not reside in the same town or village or Thana, he will still continue to be member of the Society. In my opinion, the situation is covered by the third paragraph of clause 10 of the Bye-laws the Society, by necessary implication. That too will be case of automatic cessation of membership. That being the position, I have no hesitation in rejecting contentions urged on behalf of the petitioners.-----"
26. As a matter of fact, the Apex Court against having noted that the issue in the case of Bhawanipur Fisherman's Cooperative Society (supra) was confined to the membership of the society it, while approving the aforesaid judgment of this Court, had again recorded its concurrence in the following terms.
"It is this finding of the High Court which has been assailed in this appeal and Mr. Ranjit Kumar, learned counsel appearing in support of the appellant strongly contended that by reason of reduction of area, question of cessation of membership does not and cannot arise and Section 8 is rather categorical on this aspect of the matter and as such the High Court as well as the Assistant Registrar were wrong in coming to the conclusion. We are however not in a position to lend our concurrence to such a submission. The area of operation of the society at the time of its formation was entire Sikta. Thana and the membership has also been taken depending upon the residence within the area of operation i.e. Sikta Thana and it is the residential criteria which along shall have to be taken not of in the matter of continuation of membership. The language of bye- law 10 to wit: "Any member who removes his residence permanently from the area of operation mentioned in bye-law No.4 would not normally continue to be a member unless the Committee passes the order continuing his membership" is rather categorical and there exists no ambiguity in regard thereto and the Registrar of the Cooperative Society 29 in terms of the power as conferred on him by the statute on the state of facts has passed an order of discontinuation of such membership, as such question of taking recourse to Section 8 in contextual facts does not and cannot arise.
In our view the High Court has dealt with the matter in its proper perspective and we see no reason to interfere with the order of the High Court."
27. In the present case, neither the appellant has brought on record the bye-laws of the Fisherman Cooperative Society of the respondent no.8 to show that the area of operation of the society was not prescribed by mentioning the Panchayat or the villages comprising the then Pipradhi Block as it existed in the year 1972 and was registered within the area of operation on the basis of the block and therefore, even otherwise, it is not possible for us to hold that the aforesaid judgment in the case of Bhawanipur Fisherman's Cooperative Society (supra) would be applicable because the Division Bench in paragraph no.7 as quoted above had in fact indicated that had the registration of the old society with regard to the area of operation been made by mentioning the Panchayat or the village comprising Pipradhi Block, it is such area of operation could not be reduced without affecting corresponding amendment in the buy- laws by excluding certain Panchayat or village could have been accepted. In fact, in that case, the registration was of the old society was made on police station-wise and therefore, in the matter of deciding the dispute relating to the membership of the society which was to be essentially 30 guided by the place of residence, it was held that the area of society got automatically truncated and the members failing to decide the area had ceased to be the members of society. Such is not the case in the present case and therefore, we find no applicability of the ratio laid down by this Court and affirmed by the Apex Court in the case of Bhawanipur Fisherman's Cooperative Society (supra).
28. Learned counsel for the appellant as a last ditch had also submitted that the entire exercise by the learned single Judge while entertaining the writ application in presence of the statutory alternative remedy was unsustainable, inasmuch as, the respondent no.8, the writ petitioner, had the forum of appeal under Section 14 of the Act. Such submission however has to be noted only for its being rejected. In the present case, the impugned order was passed at the behest of the Director, Fisheries who is the appellate authority under Section 14 of the Act and therefore, there could have been no purpose of filing appeal from ceaser to ceaser. This aspect of the matter in fact had also been dealt with by the learned single Judge in the impugned order and we find no error in the same.
29. As has been explained above by us that it was not the question of membership of the two Fisherman Co-operative Society rather the settlement made earlier in favour of the society respondent no.8 had been cancelled on account of the formation of a new society and 31 therefore, the plea that the members of the society of Purnahia Block could no longer continue as a member of Pipradhi society is neither here nor there. No complaint in fact has been mentioned by any of the member of the society before this Court that they had not been given the justification of the jalkars by the society represented by the respondent no.8 rather there are unimpeachable evidence to show that all the 22 jalkars of Purnahia Block were allowed to be reaped harvested by the members of the Purnahia Block.
30. It, therefore, appears to us that the writ petitioner by virtue of becoming Secretary of the newly formed society and only wants to stamp his authority in the matter of managing the 22 jalkars in the midst of its operation under the control of the society represented by the respondent no.8. We would, therefore, find no public interest involved in the impugned order canceling the settlement already made in favour of the society represented by the respondent no.8.
31. We would, however like to protect that much interest of the appellant, who during the pendency of this writ petition filed by the Respondent no. 8, on 30.9.2008 is said to have deposited a sum of Rs. 21,577/- on 17.10.2008 vide Annexure-B to the counter affidavit filed in the connected writ petition for claiming settlement of 22 Jalkars in favour of his society. Since we have held such decision to be bad which infact has already been quashed by the learned Single Judge in the impugned 32 order while allowing the writ petition of Respondent no. 8, we while affirming the said order of learned Single Judge would direct for refund of the said amount to him within a period of three months from the date of receipt/production of a copy of this order. In this regard, it has to be clarified that in terms of the earlier settlement made for a period of five years for 44 jalkars restored by the learned Single Judge the respondent no.8 is duty bound to deposit the amount of reserve jama under the terms of his agreement dated 9.12.2006 which stands restored and reinforced in view of the impugned order passed by the learned Single Judge and also affirmed by us in this appeal..
32. Thus in the light of our findings and the reasonings recorded above, we do not find any error in the impugned order passed by the learned single Judge and this appeal, being devoid of any merit, is accordingly dismissed subject to the aforesaid observations and directions.
33. There would be no order as to costs.
I agree.
(Dipak Misra, CJ.) (Mihir Kumar Jha, J.) Patna High Court, Patna Dated, the 30th April, 2010 AFR/(Rishi)