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 O R D E R (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. 2 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, 3 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 4 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 5 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. 6 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. 7 (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 8 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. 9 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 10 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. 11 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. 12 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 14 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