IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15582 of 2008 1. PRAKHAND BARIARPUR MATSYAJIVI SWABLAMBI SAHKARI SAMITI LTD. BARIARPUR (MUNGER) THROUGH ITS CHIEF EXECUTIVE SAUDAGAR SAHNI, SON OF LATE NASIB SAHNI. 2. SAUDAGAR SAHNI, SON OF LATE NASIB SAHNI. BOTH RESIDENTS OF VILLAGE- BARIARPUR BASTI, P.O+P.S.- BARIARPUR, DISTRICT- MUNGER. ----- PETITIONERS Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, ANIMAL HUSBANDARY AND FISHERIES DEPARTMENT, BIHAR, PATNA. 2. THE JOINT SECRETARY, ANIMAL HUSBANDARY AND FISHERIES DEPARTMENT, BIHAR, PATNA. 3. THE DIRECTOR, FISHERIES, BIHAR, PATNA. 4. THE JOINT DIRECTOR, FISHERIES DEPARTMENT, BIHAR, PATNA. 5. THE DEPUTY DIRECTOR, FISHERIES, BHAGALPUR. 6. THE DISTRICT FISHERIES OFFICER-CUM-CHIEF EXECUTIVE OFFICER, MUNGER. ----- RESPONDENTS ----------- 4 13.7.2009 Petitioners are aggrieved by the order contained in annexure-12 dated 22.9.2008 passed by the Secretary, Animal Husbandary and Fisheries Department cancelling the settlement of the petitioner on the ground that the order of settlement is in the teeth of provisions of Section 7(1), 7(4) and 7(3) of the Bihar Fish Jalkar Management Act, 2006 (hereinafter referred to as the ‘Act’). The main contentions of the learned counsel for the petitioners are that by an administrative order and without hearing the petitioner, the settlement has been cancelled in favour of the Society on completely nonest grounds. The respondent on the other hand contends that the order is absolutely justified 2 as the District Fisheries Officer could not have passed the order settling all the 8 Jalkars in the Anchal of Bariarpur in favour of petitioner no. 1 even though the respondent no. 7 (impleaded by the order of this Court dated 20.3.2009 passed in L.P.A. No. 963 of 2008) was a defaulter Society. The facts of this case are that the notice was issued to the Society on 8.6.2006 to take settlement of the 8 Jalkars situated in the Anchal of Bariarpur, Munger. At the relevant time the Society stood superseded and an administrator was appointed who vide annexure-13 dated 20.6.2006 expressed his inability to take settlement of the Jalkars. By Annexure-14, 45 members of respondent no. 7 Society made an application for taking settlement of the Jalkars which they withdrew vide annexure-15 dated 19.10.2006 by stating that the Jalkars in question had dried up due to the delay in settlement and as such they did not wish to take settlement of the said Jalkars. It was only on refusal of the society and its members that 8 Jalkars were settled to the petitioners’ society with effect from 3 1.7.2006 till the period 30.6.2011 and the Society thereafter took steps to distribute the Jalkars among its members and has already enjoyed the fruits of the settlement since last three years. It has been stated that the Parwana has also been issued in favour of the Petitioner Society. The respondents’ counsel on the other hand submits that the settlement is absolutely without following the procedure as provided under Section 7(1) and 7(9) of the Act. Section 7(1) envisages that “the settlement of short time Jalkars shall be made on the Reserve Deposit amount with the non defaulter Fishermen Cooperative Societies operating within the geographical area of the block or to the members of Disqualified Fishermen Societies.” It is not disputed at the relevant time i.e. on 1.7.2006 when the settlement was made the respondents Society was a defaulter. It has been stated that in the year 2008 they have subsequently deposited the amount which was due to be paid by them. Referring to Sub Section (ix) of Section 7, it is submitted that it provides that the shares 4 of the Jalkars of a disqualified Society of a block may be made with the members of that society residing in the same block where the Jalkar is situated. But only 1 Jalkar was settled with one person. Referring to Section 8 learned counsel submits that the District Fisheries Officer was bound to give information for the settlement by a limited bid to the eligible Fisherman Cooperative Society when the limited bid was proposed amongst its members. It is contended that this procedure was not followed and, therefore, the entire settlement is ab initio void. Learned counsel appearing on behalf of the petitioners submitted that in fact the members of the Society had already expressed their inability to take settlement and as such it would not be required under the law to issue a notice for a limited bid, as they had lost the opportunity to take advantage by stating that they were not interested in taking the settlement. I may mention at this juncture that the respondent no. 7 who is the Secretary of the respondent no. 7 Society has been elected 5 in the year 2008. After his election he filed an application to both the District Fisheries Officer and the State Government for settlement of the Jalkars. It is contended that it is at the instance of the newly elected Secretary, the impugned order has been passed. This Court cannot understand as to how the Secretary could have by an administrative order without registering an appeal or without adopting any procedure under the law pass an order cancelling the settlement and that too without giving the petitioner society an opportunity to be heard. Learned counsel for the respondents submits that an Act which is ab initio illegal is void and no show cause is required in order to support the impugned order. Learned Counsel for the respondent has referred to a judgment of State of Bihar Vs. Santosh Kumar Singh reported in 2009(2) PLJR 472. The judgment of this Court refers to an illegal appointment. The facts indicates that the appointees were given a show cause for cancellation of their appointments and in that context they had taken a defence that they had worked for a long 6 period of time as teachers and had an unblemished career and as such their appointments ought not to be cancelled. In this context the Court has held that “a thing done in violation of law is illegal. Anything illegal is void. A thing void is void from the beginning and accordingly is void ab initio.” In the facts of this case the principles enunciated in the case of State of Bihar would not be applicable as in this case neither was a notice given to the petitioner giving them opportunity to demonstrate before the authority concerned that the settlement made in their favour was in accordance with law nor has the Secretary of the Department issued notice before cancelling the settlement. The petitioners, therefore, had no opportunity to explain the circumstances under which the order was passed. Although a stand has been taken by the Counsel for the State of Bihar that subsequently a show cause notice was issued to the District Fisheries Officer for taking action for passing an order which according to the Secretary is illegal. The fact of the matter is that the 7 order impugned if it was passed on the basis of an application made by the respondents ought to have been made after instituting an appeal and giving an opportunity to the petitioner to reply to the appeal. Perhaps this was not done by the Secretary as the appeal would have been time barred under the Provisions of the Act as the grievance has been raised after a period of three years. Be that as it may, this Court finds that the impugned order cannot be justified as the process of natural justice has not been complied with and as such the order dated 22.9.2008 is quashed. The Secretary, Department of Animal Husbandary and Fishery Department, Patna may issue notice to the respondents and petitioners society both by ordinary process and under registered cover, call for the records and after examining the records and hearing the parties including the District Fisheries Officer pass an appropriate order that he thinks fit and proper. If such an action is contemplated by the Secretary he may take notice of the fact that out of the total period of settlement, 3 8 years have expired so it would be in the interest of justice to dispose of the application as expeditiously as possible. This writ application is allowed with the aforesaid directions. Sanjay (Sheema Ali Khan, J.)