IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1376 of 2009 1. MOTIPUR PRAKHAND MATSYAJIVI SWABLAMBI SAHKARI SAMITI LTD., MADHOPUR THROUGH ITS CHIEF EXECUTIVE NISHITH KUMAR SON OF SHAMBHU NATH CHOUDHARY 2. NISHITH KUMAR S/O SHAMBHU NATH CHOUDHARY BOTH RESIDENTS OF VILLAGE AND P.O.- MADHOPUR, P.S.- MOTIPUR, DISTT.- MUZAFFARPUR … Petitioners-Appellants Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY ANIMAL HUSBANDARY AND FISHERIES DEPARTMENT, BIHAR, PATNA 2. THE DIRECTOR FISHERIES, BIHAR, PATNA 3. THE DEPUTY DIRECTOR FISHERIES TIRHUT DIVISION, MUZAFFARPUR 4. THE DISTRICT FISHERIES OFFICER-CUM-CHIEF EXECUTIVE OFFICER, MUZAFFARPUR 5. MOTIPUR PRAKHAND PRATHAMIK MATSYAJIVI SAHYOG SAMITI LTD., HARAUNA THROUGH ITS SECRETARY SANT PD. SAHNI SON OF LATE RAM NAUMI SAHNI 6. SANT PD. SAHNI S/O LATE RAM NAUMI SAHNI BOTH RESIDENTS OF VILL.- HARAUNA, P.O.- MORSANDI, P.S.- MOTIPUR, DISTT.- MUZAFFARPUR … Respondents-Respondents ----------- For the Appellants : Mrs. Mahashweta Chatterjee, Adv. For the Respondents: Mr. Deepak Kumar, Adv. For the State : Mr. S.K. Sinha, (SC-13) ----------- Present : HON'BLE THE CHIEF JUSTICE HON'BLE JUSTICE MIHIR KUMAR JHA ----------- As per Mihir Kumar Jha, J. 1. Heard Mrs. Mahashweta Chatterjee, learned counsel for the appellants and Mr. Deepak Kumar, learned counsel for the respondents. 2 2. Mrs. Chatterjee, learned counsel for the appellants while assailing the order of the learned Single Judge dated 19.8.2009 in C.W.J.C.No. 576/2009 which was heard and disposed of with two other writ applications, C.W.J.C.No. 1403 of 2009 and C.W.J.C.No. 3374 of 2009 has submitted that it is only the direction contained in penultimate paragraph of the last page of the impugned order passed by the learned Single Judge which has compelled the appellants to file this appeal, inasmuch as the same is contrary to the finding in the earlier part of the judgment upholding their challenge as against the order of the Director of Fishereis dated 5.12.2008 passed in favour of Respondent no. 5. 3. Explaining the aforesaid aspect Mrs. Chatterjee has submitted that in Motipur Block of Muzaffarpur District there are two fishermen Societies, namely, Motipur Prakhand Matsyajivi Swablambi Sahkari Samiti Limited, Madhopur and Motipur Prakhand Prathamik Matsyajivi Sahyog Samiti Limited, Harauna (hereinafter to be referred as „Madhopur Society" and "Harauna Society" respectively) who have 190 members and 105 members respectively. The Harauna Society however did 3 not choose to accept the settlement of 20 Jalkars for a period of five years made in its favour on 18.1.2008 by the District Fisheries Officer (D.F.O.), Muzaffarpur and had assailed the order of settlement of 44 Jalkars in favour of appellant Madhopur Society also dated 18.1.2008 also for five years by filing an appeal before the Director of Fisheries which was allowed in favour of Respondent no. 5 by an order dated 5.12.2008. The aforesaid appellate order of the Director of Fisheries was assailed in the connected writ petition by the appellate writ petitioner wherein the Single Judge had held that the order interfering with the settlement made in favour of appellant Madhopur Society as held by the Director of Fisheries was unsustainable. Counsel submits that the learned Single Judge having regard to the validity of settlement of 44 Jalkars in favour of appellant Madhopur Society ought to have not made a general observation and issued a direction, as one in the penultimate paragraph of her impugned order which in effect would really nullify the earlier part of the findings disapproving the entire reasonings of the Directors of Fisheries allowing appeal of the Respondent no. 5. In other words, 4 the grievance of Mrs. Chatterjee is that moment the appellate order passed by the Director, Fisheries was not approved by the learned Single Judge which gave a death knell to the entire case of Harauna Society, the direction issued by her in the penultimate paragraph of the impugned order to the District Fisheries Officer, Muzaffarpur to settle remaining Jalkars including 44 settled in favour of Madhopur Society was patently unsustainable. 4. This Court on reading of the impugned judgment which records the factual aspects in detail would find that the whole dispute between the parties in the year 2007 had emerged on account of settlement of Jalkars in Madhopur Prakhand (Block) which has 73 Operational Jalkars, out of which one Jalkar was settled on the basis of long term settlement while 8 Jalkars had already been settled with Harauna Society for the years 2006-2007 to 2010-2011 and in fact only 64 Jalkars were available for which steps for settlement for a period of five year with effect from 1.7.2007 were taken by the D.F.O., Muzaffarpur. From the judgment it also becomes clear that for making settlement of 72 Jalkars, barring one for 5 long term settlement, a classification was made in terms of section 3(2) of the Bihar Fish Jalkar Management Act, 2006 (hereinafter referred to as „the Act‟), wherein 27 of them were declared to be of fine quality, 29 of them as medium quality and 16 of them as low quality. It is the finding of the learned Single Judge and not assailed before us that such classification was allowed to become final without there being any objection from any corner and therefore, the finding of the Director, Fisheries in the impugned appellate order, which was the subject matter of all the three writ petitions, that the classification was not properly made and the same need to be reclassified was held to be erroneous by the learned Single Judge who in this regard had arrived at the following findings in the impugned order:- “ This Court finds that the Director, Fisheries has not given any cogent reason for holding that the classification was incorrect. Section 14(1) of the Act provides that the objections to the classification should be made within 30 days. No such objection was filed and as such this matter could not be reopened after the settlement process had started. There is also no discussion as to how the Director came to the conclusion that there were 6 procedural defects in the said settlement inasmuch as it was not referred to the Reserve Jama Committee. This aspect has not been seriously challenged before the Director while hearing Appeal Nos. 5 and 10 of 2008 or before this Court and as such, this Court does not find any merit in the conclusions drawn by the Director.” 5. In the opinion of this Court once the classification of Jalkar was held to be valid by the learned Single Judge the entire challenge of Harauna Society as with regard to its grievance of settlement of 44 Jalkars in favour of appellant Madhopur Society had automatically paled into insignificance, inasmuch as the appellate order of the Director, Fisheries dated 5.12.2008 giving a direction for fresh settlement of 64 Jalkas i.e. 44 in favour of Madhopur Society and 20 in favour of Harauna Society was based primarily on the ground of irregularity in classification of Jalkars. It is also not in doubt that as per ratio of the members of the two Societies, the Madhopur Society was entitled for settlement of 44 Jalkars and Harauna Society for 20 Jalkars keeping in view that it had also subsisting settlement of 8 Jalkars on 1.7.2007 as noted earlier. 7 6. From the reading of the impugned judgment it would also be clear that the settlement of 44 Jalkars was made in favour of Madhopur Society vide an order of the District Fisheries Officer, contained in his Memo No. 52 dated 18.1.2008 for a period of five years i.e. 2007-2008 to 2010-2011 and such settlement is to continue to 31.3.2011. It is also an admitted position as would appear from the reading of the judgment which has not been assailed before us by Harauna Society or anyone else that after Madhopur Society was settled 44 Jalkars by the aforesaid order dated 18.1.2008 it had also deposited the amount as required in law for the period 2007-2008 and a Parwana was also issued to them vide Memo No. 202 dated 18.2.2008. The scheme of short term settlement for a period five years itself envisages payment of annual amount by the successful society in favour of whom such settlement has been made. A subsisting settlement can be cancelled only on a limited ground i.e. either not depositing of revenue/ amount of Reserve Jama or violation of any terms and conditions of the Agreement. It is true that such settlement can also be cancelled if the Director, Fisheries interferes with the 8 order of settlement passed by the District Fisheries Officer. However in the present case, when the Director, Fisheries had primarily interfered with the order of settlement passed in favour of Madhopur Society by holding that the classification of Jalkar was not properly made and the learned Single Judge on being satisfied, in the challenge made before her in the three writ petitions including the one filed by appellant writ petitioner had come to a conclusion that there was no infirmity in the classification of Jalkar, or in the allotment of 44 Jalkars in favour of the appellant writ petitioner she ought to have not gone to issue a general direction which was capable of unsettling 44 Jalkars already settled in favour of Madhopur Society, the appellant before us. 7. It has to be noted that the settlement made in favour of the petitioners of C.W.J.C. No.s 1403 and 3374 of 2009 i.e. Suraj Sahni, Suresh Sahni, Bachan Sahni, Kishun Sahni, Mahesh Sahni and Ramashish Sahni had taken settlement of 7 out of 20 Jalkars in the open bid on 23.6.2009, 24.6.2009 and 25.6.2009 on account of Harauna Society not depositing the amount of reserve Jama as per the order of settlement dated 18.1.2008 and 9 the learned Single Judge has not interfered with their settlement while setting aside the appellate order of the Director of Fisheries. Thus once Harauna Society, for whatsoever reason including the ground of their moving an appeal before the Director in respect of settlement of 44 Jalkars of Madhopur Society and/or their being allotted inferior quality of 20 Jalkars had not deposited the amount of reserve Jama, the 20 Jalkars could not have remained unsettled and as such, if the District Fisheries Officer had made settlement of 7 of 20 Jalkars in favour of member of Madhopur Society by the open bid, which was also approved by the learned Single Judge in the impugned order, there was no need to give a general direction for settlement of remaining Jalkar which would in effect include 44 of such Jalkar allotted in favour of appellant Madhopur Society. Such direction at best could have been made only in respect of the remaining unsettled Jalkar which as per present scenario seems to be only 13 in number in view of settlement of 44 Jalkar with appellants writ petitioner and 7 settled with the petitioners of C.W.J.C.No. 1403 of 2009 and C.W.J.C.No. 3374 of 2009. 10 8. Thus, it appears to this Court that an error has crept in the penultimate paragraph of the impugned order wherein it has been recorded that : “ However, the District Fisheries Officer is directed to settle the Jalkars in accordance with the provisions of the Act exclusing the jalkars settled to petitioners of C.W.J.C.Nos. 1403 and 3374 of 2009. 9. If the aforesaid directions are taken to its logical conclusion the apprehension Mrs. Chatterjee seems to be well founded that it would also amount to reopening settlement of 44 Jalkars already made in favour of the appellant Madhopur Society which as noted above was for a period of five years and was found to have been correctly made by the learned Single Judge by holding that the Harauna Society was not even eligible for settlement after refusing to pay the amount of Reserve Jama for 20 Jalkars in terms of the order of settlement dated 18.1.2008, which is self evident from the following finding recorded by the learned Single Judge in the impugned order: “ It is also apparent that the Harauna Soceity was a defaulter at the time of settlement and although a chance was given to the Harauna 11 society to pay the dues, the society did not avail the opportunity. There is a stipulation in the 2006 Act that a society who is a defaulter would not be entitled to settlement and if such settlement has been made in his favour it should be cancelled as per sub section (xiii)(i) of section 7 of the Act. The opportunity provided to take corrective steps was not utilized by the Harauna Society. I may point out that by the impugned order the settlement made in favour of the petitioners of C.W.J.C.Nos. 1403 and 3374 of 2009 has not been cancelled, rather the orders of the original settlement dated 18.1.2008 and the letter no. 745 dated 2.6.2008 asking the Harauna Society to deposit the dues against them within 21 days has been set aside, and an order has been passed to re-classify the jalkars and re-settle them. In my view this order is not sustainable for the reasons mentioned in this order.” 10. In our considered opinion once the learned Single Judge had found that the Harauna society was defaulter and had not carried out the direction for depositing of the reserve Jama in terms of the order of settlement for 20 Jalkars dated 18.1.2008, there was no question of reopening the entire settlement of 64 Jalkars 12 including 44 allotted in favour of the appellant Madhopur society. 11. Mr. Deepak Kumar, learned counsel appearing on behalf of respondent no.5, the Harauna society, however, has submitted that the direction given by the learned Single Judge for taking fresh steps for settlement remaining Jalkar barring 7 Jalkars settled with the writ petitioners of C.W.J.C.Nos. 1403 and 3374 of 2009 would not require any interference, inasmuch as the Director‟s finding in the appellate order was quite specific that the Harauna society was not given its due share of deserved category of Jalkars and that the entire process of re-classification and re-settlement had to be done in order to do justice to the interest of the members of the Harauna society. 12. In the opinion of this Court the Respondent no. 5 Harauna society, having not filed its appeal against the order of the learned Single Judge disapproving the entire appellate order of the Director of Fisheries cannot be allowed to raise such plea by way of cross objection which in effect would nullify the findings recorded in impugned order passed by the learned Single judge. Here 13 infact was a simple case that the two societies working in the same block upon classification of Jalkars and its settlement had to avail the benefit in terms of the order of settlement dated 18.1.2008 and if one of them, namely, Harauna society, respondent no.5, did not choose to take settlement of 20 Jalkars and had kept on agitating the matter in appeal before the Director or other forums and such appellate order of the Director dated 5.12.2008 seeking to unsettle the settlement made in favour of the appellant Madhopur society or the 7 members, the writ petitioners of C.W.J.C.Nos. 1403 of 2009 and 3374 of 2009, was found as a whole to be bad by the learned Single Judge, there was no occasion for now going for a fresh settlement of 44 Jalkars already settled with the appellant Madhopur society which was also reaping the benefit of such settlement by complying the terms of settlement. Therefore if such submission of the learned counsel for respondent no.5 is accepted that would mean "operation successful patient dead". 13. As a matter of fact in our considered opinion once the entire order of the Director of Fisheries dated 5.12.2008, impugned in the three connected writ 14 petitions, C.W.J.C.No. 1403/2009, C.W.J.C.No. 3374/2009 and C.W.J.C.No. 576/2009, the last one filed by the appellant- writ petitioner- Madhopur society was found to be bad, the only logical outcome would be that there was no flow in the settlement of 44 Jalkar made in favour of appellante Madhopur Society. 14. We, therefore, are satisfied that the directions contained in penultimate paragraph of the impugned order needs to be modified which after such modification made by us would read as follows: “However, the District Fisheries Officer is directed to settle the remaining Jalkars in accordance with the provisions of the Act excluding Jalkars settled with the petitioners of C.W.J.C.Nos. 1403 and 3374 of 2009 and C.W.J.C.No. 576 of 2009.” 15. With the aforementioned limited clarification and modification in the impugned order, this appeal is disposed of. There would be, however, no order as to costs. I agree. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court Dated the 16th April 2010 N.A.F.R./Surendra/ 15