IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1066 of 2009 Smt. Shanti Devi 'Adhyaksha' Vindhyawasini Matsya Jivi Swalambi Sahkari Samity Limited, Kaunru- Dhauru, Manjhi Prakhand, Chapra (Bihar), resident of village- Kaunru, Police Station Manjhi, District Saran. … Petitioner.. Appellant Versus 1. The State Of Bihar 2. The Director, Fisheries, Bihar, Patna. 3. The District Fisheries Officer-cum-Chief Executive Officer, Saran, Chapra 4. Arvind Kumar Mallah, Adhyaksha , Kashyap Matsya Jiwi Swalambi Sahkari Samiti Limited, Manjhi, Anchal- Manjhi, Police Station- Manjhi, District Saran. 5. Sushil Kumar Suman, Mantri, Matsyajivi Sahyog Samiti, Manjhi, Village- Godha, Post Office- Khajuhari, Police Station- Manjhi, District- Saran, Bihar. .. (Respondent)-Respondents ----------- For the appellant :Mr. Mrityunjay Kumar Tiwary, Adv. For the State. : S. C.-13 For the respondent : Mr. Deepak Kumar, Adv. -------- 2. 15.02.2010 Heard learned counsel for the parties. The appellant-writ petitioner has assailed the order of the learned single Judge dated 13.7.2009 in CWJC No. 7829 of 2009 dismissing the writ application wherein she had affirmed the order dated 4.9.2008 passed by the Director Fisheries, Bihar in Appeal Case No. 61 of 2007-2008 granting 28 Jalkars by holding 78 members of the society represented by the appellant-writ petitioner to be non-fishermen. Counsel for the appellant-writ petitioner has submitted that Appeal Case No. 61 of 2007-08 was filed 2 by the appellant-writ petitioner against order dated 15.6.2007 passed by the District Fisheries Officer, Saran whereby and whereunder he having considered the rival competing claim of Majhi Prakhand Matsyajivi Sahyog Samiti, Manjhi, Vindhyawasini Matsya Jivi Swalambi Sahkari Samity Limited, Kaurudhauru, Manjhi and Kashyap Matsya Jiwi Swalambi Sahkari Samiti Limited, Manjhi had rejected the claim of the society represented by the appellant-writ petitioner on the ground that not only a large number of its members were non-fishermen but even its chairman and several members of the Board of Director were non-fishermen who were not concerned with the business and occupation of fishermen. Learned counsel in this regard had submitted that the order of settlement dated 15.6.2007 confining allotment of Jalkars only amongst remaining two society namely Majhi Prakhand Matsyajivi Sahyog Samiti, Manjhi and Kashyap Matsya Jiwi Swalambi Sahkari Samiti Limited, Manjhi being altogether unsustainable in terms of Bihar Matsya Jalkar Prabhandan Adhiniyam, 2006 was assailed before the Director of Fisheries and when in the impugned order the Director had ultimately found the society represented 3 by the appellant- writ petitioner to be entitled for settlement for 28 Jalkars he ought to have set aside the entire settlement made by the District Fisheries Officer in his order dated 15.6.2007 for its being re-settled in accordance with the provision of the Act. Learned counsel for the respondents no. 5 would submit that the order of the Director, appellate authority, was based only on the subsequent events which came to his notice in view of the report by way of comments submitted by the District Fisheries Officer in course of enquiry undertaken at the stage of appeal. It was impressed before us that following finding recorded by District Fisheries Officer as with regard to ineligibility of society represented by the appellant-writ petitioner:- ^^----------dqy rhu lfefr;kW ¼1½ eka>h iz[kaM eRL;thoh lg;ksxh lfefr fy0 ekW>h ¼2½ foU/kokluh eRL;thoh LokoyEch lgdkjh lfefr fy0] dkS:/kkS:] ekW>h ¼3½ d';i eRL;thoh LokoyEch lgdkjh lfefr fy0] ekW>h }kjk dkxtkrksa ds lkFk vkosnu i= tek fd;k x;kA vkosnu i=ksa dh tkWp djkbZ xbZ] tkWpksijkUr ik;k x;k fd foU/kokluh eRL;thoh LokoyEch lgkdjh lfefr esa cgqr lkjs lnL; xSj eNqvk gSa] bl lfefr ds v/;{k ,oa funs'kd eaMy ds dbZ lnL; xSj eNqvk gSa budk ijkEijkxr is'kk eRl; O;olk; ugha gSA bl fLFkfr esa vf/kfu;e dh /kkjk 2 ds mi/kkjk 9 ,oa l'kksf/kr mi/kkjk 4 8 ds rgr ;g lfefr cUnkscLrh ikus ;ksX; ugha gSA lfefr dks bl dk;kZy; ds i=kad 370 fnukad 29-05-2007 }kjk izek.ki= ds lkFk fLFkfr Li"V djus gsrq dgk x;k ijUrq muds }kjk bl laca/k esa dksbZ izek.k ugha fn;k x;kA bl fLFkfr esa fcgkj eRL; tydj izca/k vf/kfu;e 2006 ,oa la'kksf/kr vf/kfu;e 2007 ds /kkjk 2 ds mi/kkjk 9] 8 ds vkyksd esa blh /kkjk ds mi/kkjk 1 esa iznr 'kfDr ds rgr fujfgZr ?kks"khr fd;k tkrk gSA bl fLFkfr esa ftrus eNqvk lnL; gSa mudh la[;k ds vk/kkj ij bl lfefr dks vkoafVr tydjksa dh cUnkscLrh lfefr ds flQZ eNqvk lnL;ksa ds lkFk lhfer Mkd ls djus dk fu.kZ; fy;k tkrk gSA 'ks"k nks lfefr tkWpksijkUr l{ke ikbZ xbZ gSA----------** was never set aside by the appellate authority and therefore the decision which was ultimately rendered by the appellate authority as with regard to 28 Jalkars which were earlier settled with individual members through open auction was only interfered by way of giving equitable relief to the appellant-writ petitioner for its being settled for a period from 1.7.2007 to 30.6.2012. In our considered opinion this aspect of the matter was in fact also considered by the learned single Judge who has found the appellate order of the Director to be valid while holding that : “……The order of the Director discusses all aspect of the matter. The settlement was for the years 2007-2008 and 2010- 2012. Accordingly, notice was issued 5 and the fishermen and the Societies operating within Manjhi Anchal of Chapra district. On the basis of the membership of each of the Society, the Jalkars were allotted to respondents 4 and 5. The District Fisheries Officer disqualified the petitioner’s society on the ground that 78 members were non- fishermen. The appellate court has set aside the findings and held that it is a valid society and is entitled to take settlement of the Jalkars in question and in fact has ordered that for the remaining period, 28 Jalkars should be settled with the petitioner Society. This order was passed on 4.9.2008 cancelling the bid which was made in favour of the private fishermen. It is relevant to mention here that the petitioner’s society till today has not taken settlement of Jalkars although the order was passed on 4.9.2008 to settle 28 jalkars with them (petitioners). The objection of the petitioner society is that 28 jalkars allocated to him are of low category and the jalkars have not been properly categorized before settlement. On perusal of the order passed by the Director, I find that the Director has noticed the objection raised by the petitioner and has come to a finding that at the time when settlement was made, the petitioner’s society or, for the matter, no other society filed any objection with respect to categorization and therefore, has held that at this stage this objection cannot be raised by the petitioner. The proper time to raise such objection was at the time when settlement was made. Having not done so, this aspect of the matter cannot be adjudicated after two years of the settlement. 6 In view of the fact that the Director Fisheries has found that the petitioner’s society is eligible for taking settlement and has already passed an order directing the District Fisheries Officer to settle 28 Jalkars with the petitioner, it would be open to the petitioner to immediately apply and take settlement of the jalkars in question. Nothing, therefore, is left for adjudication by this court. This writ petition, is thus, dismissed.” Counsel for the appellant-writ petitioner has also not been able to refer to any document as with regard to recording of finding of fact by the District Fisheries Officer to the effect that the society represented by the appellant-writ petitioner vide letter No. 370 dated 29.5.2007 being directed to produce certificate as with regard to status of their members and clarify the position with regard to the non-fishermen being the members and office bearers of the society sufferers from any error of record. Once, the District Fisheries Officer therefore had found the society of the appellant-writ petitioner to be disqualified, the further inquiry undertaken on the basis of the materials disclosed by the appellant-writ petitioner 7 before the Director Fisheries, the appellate authority for the first time could not have led to cancellation of the settlement already made in favour of two societies represented by respondent no. 4 and 5 as noticed in the impugned order passed by the Director. It has to be noted that the order of settlement passed by the District Fisheries Officer came to be issued on 15.6.2007. The first of the objection was filed by the appellant-writ petitioner only on 18.9.2007 vide Annexure- 6. The said objection also seems to be based on a manufactured document and thus does not inspire confidence. In such a situation, this Court would find that the direction given by the Director of Fisheries in capacity of Appellate Authority was more or less by way of grace on the basis of certain enquiry conducted by him in course of hearing of the appeal wherein he could find that out of 299 members of the society represented by the appellant- writ petitioner 78 were non-fishermen and only 221 were fishermen. The Director, therefore, having held that the apportionment made of 98 Jalkars on the basis of 604 members of the society represented by respondent no. 4 and 59 members of the society represented by respondent 8 no. 5 had entitled them for settlement of 65 and 5 Jalkars respectively could not have been disturbed such settlement and therefore it was only remaining 28 Jalkars on the basis of number of the members of the society represented by the appellant-writ petitioner which a best could be given to them for settlement for rest of the period. This court therefore does not find any error in the said order of the Director specially when the opportunity extended to the appellant-writ petitioner at appropriate stage of time by the District Fishery Officer as with regard to clarification of the status of its members was never availed by her. In fact, the Director has been rather considerate in also cancelling the settlement of 28 Jalkars for its being allotted to the society represented by appellant-writ petitioner which was settled by open auction in favour of 28 individual members. This court, therefore, would hold that in the midst of the term of such settlement which had commenced from 1.7.2007 for a period of five years i.e. 30.6.2012 ,the rights accrued by the society represented by respondent nos. 4 and 5 could not have been taken away after more than a year and consequently the order of allotment of 28 Jalkars in favour 9 of the appellant’s society as directed by the appellate authority, the Director Fisheries was sufficient to satisfy the grievance of the appellant-writ petitioner specially when the appeal preferred by the appellant-writ petitioner was found to be itself barred by limitation. The further grievance of the appellant-writ petitioner that the superior quality of Jalkars had already been settled in favour of respondent no. 4 and 5 has also got no merit inasmuch as the two society represented by respondent no. 4 and 5 were all along found to be fit for such settlement in the order of the District Fisheries Officer who had in fact had found the appellant-writ petitioner ineligible for settlement of any Jalkar. Consequently, if the appellate authority has given share of Jalakar to the appellant-writ petitioner by way of grace after looking into the composition of the members of the appellant’s Society in which only 221 members were found to be fishermen and remaining 78 to be non- fishermen on the basis of an enquiry report submitted by the District Fishery Officer during the pendency of the appeal, that by itself was sufficient to mitigate the grievance of the appellant-writ petitioner specially when 10 she had never bothered to avail such opportunity during the process of settlement undertaken by the District Fisheries Officer who by his Letter No. 370 dated 29.5.2007 had specifically given an opportunity to the appellant-writ petitioner to explain the details of 299 members. In such a situation, this Court would find that the learned single Judge has correctly held that the appellant-writ petitioner having failed to file any objection to the earlier settlement made on 15.6.2007 with respondent no. 4 and 5 could not have disturbed the settlement made in their favour. That being so, there is no merit in this appeal and the same is accordingly dismissed. However, there would no order as to costs. kanchan (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)