IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10733 of 2010 1. MOTIPUR PRAKHAND ASTARIYA MATSYAJIVI SWABLAMBI SAHKARI SAMTI LTD., MADHOPUR THROUGH ITS CHIEF EXECUTIVE NISHITH KUMAR S/O SHAMBHU NATH CHOUDHARY R/O VILL. AND P.O.- MADHOPUR P.S.- MOTIPUR, DISTT.- MUZAFFARPUR 2. NISHITH KUMAR S/O SHAMBHU NATH CHOUDHARY R/O VILL. AND P.O.- MADHOPUR P.S.- MOTIPUR, DISTT.- MUZAFFARPUR – Petitioners. Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, ANIMAL HUSBANDRY AND FISHERIES DEPARTMENT, BIHAR, PATNA 2. THE DIRECTOR FISHERIES, BIHAR, PATNA 3. THE DISTRICT FISHERIES OFFICER-CUM-CHIEF EXECUTIVE OFFICER, MUZAFFARPUR – Respondents. ----------- 5 20.9.2010 The petitioner society, Motipur Prakhand Astariya Matsyajivi Swablambi Sahkari Samiti Limited, Madhopur through its Chief Executive Officer has filed this writ petition claiming that the Fisheries Department, specially the District Fisheries Officer, Muzaffarpur should adjust the settlement amount deposited by the petitioner for the period for which the Society was actually in possession of the jalkars settled to them. It is an admitted fact that the Jalkars were settled to the petitioner society for the periods 2007-08, 2008-09 and 2009-10 with intervening litigations filed by one or the other society. The settlement was made on 18.1.2008 with effect from 1.7.2007. The settlement made in favour of the petitioner was challenged vide CWJC No. 1403/2009 and analogous cases. Against the aforesaid order the petitioner society filed LPA No. 1376/2009 which was allowed on 16.4.2010 and the petitioner was put in possession of the jalkars by order, dated 26.5.2010 contained in Annexure 12. The claim of the petitioner is that the 2 petitioner was dispossessed between the period 20.12.2008 until 26.5.2010 and as such the society should not be compelled to pay the settlement amount for the aforesaid period. A counter affidavit has been filed on behalf of the State in which it is stated that after the settlement of the forty four jalkars with the petitioner society on 18.1.2008, they continued to be in possession of the jalkars till it was not settled with any third party. It has been submitted on behalf of the State that once the petitioners have put fish seeds in the jalkars, they would be at liberty to enjoy the usufructs thereof. It is also submitted that steps were taken to inform the police to stop any illegal fishing from the jalkars. In reply to the stand taken on behalf of the State, it is submitted on behalf of the petitioner that the fish farming is multi layer process, merely putting the fish seeds in the jalkars do not lead to the conclusion that they would automatically grow into fishes. In fact after putting fish seeds, several processes are involved to ensure that fish crops remains healthy. For example it is most important that fishes are given food to sustain themselves and water in the jalkars is protected from epidemic and disease, which often affect the fishes. Leaving the fishes without any care or even without allowing the petitioners to go on the jalkars and provide food etc. to the fishes would automatically lead to deterioration of the fish crop. In order to substantiate the submissions aforesaid learned counsel for the petitioner relies on memo no. 2221, dated 3 10.8.2009 which indicates that there was a drought in several districts which led to a very poor fish crop. One of the districts that was affected was Muzaffarpur. The claim, therefore, is that not only was the petitioner not allowed to care for the fish crop, but also affected by drought due to shortage of water. Taking into account the counter affidavit filed on behalf of the State, whereby it is stated that the Jalkars were not settled to any third party, but at the same time, the admission that no body was allowed to fish in jalkars, it would be apparent that the society was not in position to look after or care for the fishes, which were in the jalkars between 20.12.2008 to 26.5.2010. In the circumstances I do not see that there can be any justification on behalf of the State to insist that the petitioner should be compelled to pay the entire settlement amount, rather, in the facts aforesaid, it appears that the petitioners have made out a case that they were not in possession of the jalkars in question during the period when the settlement was cancelled. The State Government should adjust the amount already paid by the petitioner with respect to the period 20.12.2008 to 26.5.2010. This writ petition is, thus, allowed. haque ( Sheema Ali Khan, J.)