iNTHEHIGHCOLIRTOFJUDICATUREOFCHHATnSGARH ATBILASPUR W.P.(227)No.__$^0- Of 2Q10 J. PETITIONER: RLAINTIFF ''•'"sfc-'"- !• ^^ Ei/^^S^. fo^C^':''1' -/. ' e^" Jai Bhole Machhuwa Sahkari ^ Samiti Maryadit Pailmetha through President Jai Bhole MacHhuwa Sahkari Samiti Maryadit, Pailimetha, Tahsil Chhuikhadan, Distt Rajnandgaon (C.G.) VERSUS RESRQNDENTS .1. Ej"-iifflj »•g ^•s^ 3 2. 3. y The Assistant Director Rishery Industp/, Rajnandgaon, Tahsil & District Rajnandgaon (C.G.) State of Chhattisgarh through Collector Rajnanclgapn, District Rajnandgaoo (C. G.) Bhagela Gond S/o Shri Hathiyar Gond, Aged aboyt 49 Years, through President Gandai MacHhuwa Sahakari Samiti Maryadit Gandai, Tatisii Ctihuikhadan, Distt Rajnandgabn (C.G.) • ,' : . •••;.:.'.:' ^/RIT-PETITIONUNDERARH-ICLg2270E-Tl-IE tGONSTITUTIQNOF.INDIA .^ I HIGH COURT OFCHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Prashant Kumar Mishra W.P. f227»No.5760of 2010 Jal Bhole MachhuwaSahkarl Samitl Maryadlt Pailimetha Versus The Assistant Dlrectorand others. ORDER Postfor^-01-2011 Sd//- .. prashantKumarMishra Judge iLI:Ll; ancta:.tniKiE3ta naRttt^ ^v: ^ HIGH COURT OF CHHATTISGARH AT BILASPUR SinaleBench: Hon'bleShri Justice Prashant Kumar Mishra Writ Petition (227lNo. 5760/ 201 O PETITIONER BESEQNDENTS Versus Jai Bhole Machhuwa Sahkari Samiti MaryaditPailimetha The Assistant Director and others. Shri Abhishek Sharma, counsel for the petitioner. Shri Ajay Dwivedi, Deputy Govemment Advocate for the State/respondents No.1 & 2. Shri Prafull Bharat, eounsel for the respondent/3. WRITPETmONUNDERARTICLE2270FTHECONSTITUTIONOF INDIA ORDER (I? /01/2011) The instant petition under Article227 of the Constitution of India has been preferred by the plaintiff to catl in question the appellate as well as trial Courts order refusing his prayer for grant of temporary injunctfon under Order 39Rule1&2ofC.P.C. (2) The case of the plaintifF, as reflected in the plaint (Annexure P/3) is that the plaintiff is a registered Co-operative Society having been registered on 08/01/1996, for carrying out fishing and connectedactivities. The defendant No.3/Society, having its Head Office at Gandai was.under liquidation, however jt was reactivated after the registration of the plaintiff/Society and thus according tothe plaintiffit is the only Society within a distance of 8 Kilometers from the subject tank. In response to an advertisement issued by the respondent No.1 the plaintiff and other Societies submitted appdcation for grant of flshing lease and vide order dated 29/03/2008 alease wasgrantedforthepsriodendingon 30th June, 2012 and ,i . - ' • . \ ; -ff: • . ! : : ' ., . in pursuance to said grant lease deed was executed on29/03/20Q8 itself. -^—/1 tKWRI A- ^.s^ -A- c. The plaintiff paid the first installment of premium of Rs.20,000/- and sown the seeds in the Pailimeta Surhi Jalashaya (hefeinafier retened as 'subject tank'). The defendant No.3 moved an application before the Assistant Registrar Co-operative Swietles to challenge the tease granted to the plaintiff. Vide order dated 1 1/05/2009 the said application of defendant No. 3 was rejected, however appeal preferred by the defendant No.3 before the Joint Registrar was allowed vide order dated 18/11/2009 (Annexure P/7) and the lease granted in Tavour of plaintiff was cancetted. tn pursuance to the said appellate order the Assistant Director, Fisheries vide its order dated 02/12/20)9 (Annexure P/8) cancelled the lease. (3) Challenging the appellate order passed by the Joint Registrar, the . plaintiff preferred Second Appeal before the Additional Registrar, Co-operative Societies which was disposed of as infructuous vide order dated 25/03/2010 (Annexure P/9). According to the second Appellate Authority since the lease itself has been cancelled.no order is required to be passed onthe dispute. In fact the second appellate Court, in the last line of the order, set-aside the appellate order of Joint Registrar. The Assistant Director, Fisheries thereafter invited applications and this time lease was granted to defendant No.3. , (4) The plaintiff thus pleaded that proceedings r^arding cancellationof lease was done in violationof principles of natural justice and th®lease was cancelledon thebasis ofthe first appellate order ofthe JointRegistrar virtiich ~ was later on set-aside by the second appellate authority of Additional v- Registrar, Co-operativeSocieh'es andthus the cancellationof lease is illegal. 6\- The plaintiff also moved an applieation for grant of temporary injunction to restrain the defendants from interfering in the plaintifFs fishing right over the tank. The suit was filed on 18/02/2010. (5) The defendants No. 1 &2, in its reply stated that though the plaintiff is in possession of the suit tank, in wew of cancellation of lease after the first appellateorder of Joint Registrar, the plaintiffis notentitled to anytemporary injunction. The defendant No.3 also filed its reply /nfer affa stating that the lease has been cancelled after the appellate order passed by the Joint Registrar. It is also submitted by said defendant that Uie plaintiff is not entitled to grant of lease with respecttosubjecttank. (6) Fromthedocumentannexedwiththewritpetitionitwouldappearthat after filing of thesyit e leaseof the subject tank has been granted to the defendant No,3. However, it is also to be seen that the lease granted to the plaintiffwas cancelled without giving any opportunity of hearing and without issuing any show cause notice to him. The order canceling the leasewas passed on 02/12/2009 (Annexure P/8) in complianGe of the appetlate order passed by the Joint Registrar. Co-operative Societies on 18/11/2009 and some communication issued by the Director, Fisherieson 30/11/2009. The said letter of Director of Fisheries has not been placed on record by any of the parties. From the text and tenor of Annexure P/8 itappears fliat the authority wasacting either under the appellate order or under the order of Director, however it is to be notedthat theappeltate order wasset-aside by the second appellateCourt vide Annexure P/9 and the letter of the Director Jias neither been placed on record nor the Director could have issued any instructions for cancellation of lease withput hearing the plaintiff. Thus pnma facfecancellation of lease appears to have been done in violation of k^ principles of natural justice. ^t- SSSS^ 1 (7) Both the Courts below have not addressed itseffto this core issue of illegal canceflation of the lease granted in favour of plaintifF. There are serious question to be tried in th®suit regarding the right andentitlementof the plaintifF and the defendant No.3 to obtain lease ofthe subject tank. When the trial Court passed the order on 16/03/2010 theappetlate order of Additional Registrar, Co-operative Societies passed on 25/03/2010 was not in existence and the appellate Court dealing with the ptaintiff's appeat under Order 43 Rule 1 (R) of C.P.C. has not considered the effect of the second appellate order passed by the Addittona! Registrar, iCo-operative Societies setting-aside the appellate order passed by the Joint Registrar, Co-operative Societies. At the same time it is also to tse seen that subsequently lease of the subject tank has been granted to the defendant No.3 and the said defendant has sownseeds of the vatue of Rs.4,00.000/-, therefore in this view ofthe matter a temporary injunction in terms ofttie prayer made bythe plaintiff to restrain the defendant to interfere in his fishing right cannot be granted. However, looking to the Tact that plaintiffs lease has been cancelled without giving bpportunity of hearjngand there is serious question to betried in the sujt, this writ petition is disposed of with a direction to the trial Courtto makeevery endeavourto dispose ofthe suitwithin a period'of four months from the date of presentation of certified copy of this order and ddring the said period of four months, the plaintiff as wetl as the dsfendant No.3 shalf not undertake any fishing activily in the subject tank. (&) With the above direction, the instant petitionstands disposed of. Sd//- Prashant Kumar Mishra Judge