IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.599 of 2008 GORAUL PRAKHAND MATSHYAJIVI SWABLAMBI SAHKARI SAMITI LIMITED Versus THE STATE OF BIHAR & ORS ----------- For the appellant : Mr.Ram Balak Mahto, Senior Advocate Mrs. M. Chatterjee, Advocate For the respondents: Mrs. Nilu Agrawal, No. 1 to 3 Government Advocate-X For the respondents: Mr. Pashupati Prasad Sinha, Advocate No.4 & 5 Mr. Deepak Kumar, Advocate ------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----- Dated, the 09th September, 2008 Section 7 of Bihar Fish Jalkar Management Act, 2006, reads thus: 7. Short Term Settlement:- (i) Excluding the Jalkars selected for Long Term Settlement, Short Term Settlement of all other Jalkars shall be made on the Reserve Deposit amount with the non-defaulter Fishermen Co-operative Societies operating within the geographical area of the Block or to the members of disqualified Fishermen Co- operative Societies. (ii) The competent authority for the approval of short term settlement of the Jalkar, shall be the following :- (a) The District Fisheries Officer for the Jalkars of Annual Reserve Deposit up to five thousand. - 2 - (b) The Deputy Director of the range for all the Jalkars of Annual Reserve Deposit more than Rupees five thousand and up to twenty thousands. (c) The Director Fisheries for all the Jalkars of Annual Reserve Deposit more than twenty thousands and up to one lakh rupees. (d) Settlement of all the Jalkars of Annual reserve deposit more than one lakh rupees shall be approved by the state government: Provided that the State Government shall have the power to re-determine the above limit of prescribed amounts after an interval of every five years by notification published in the official Gazette. (iii) It will be compulsory for the Fishermen Co- operative Societies to enclose following documents with their application to the District Fisheries Officer for settlement of Jalkars. (a) A proof relating to the payment of current year audit fee and Audit report of the previous two years, issued by the co- operative department. (b) A certificate of last election and a proof regarding area of operation of the society. (c) A proceeding of Annual General Meeting of the proceeding year in which there should be a clear description of settlement made with members by the society. (d) With the approval of the Managing Committee of the society, a village wise and Panchayat wise list of Jalkars along with the names of the applicant fishermen member/members with whom the settlement is proposed. If the settlement of any Jalkar is proposed with more than one member, then the name of the group leader. - 3 - (iv) For ensuring the settlement, the District Fisheries Officer shall send a notice Block wise with information of date, place future settlement and proportion of Jalkars in their share to all concerned fishermen Co-operative Societies by registered post before 31st March. The copy of this information shall be given to the Collector, Deputy Development Commissioner, Additional Collector, Concerned Sub-divisional Officers, Circle Officers, Block Development Officer, Pramukh or Panchayat Samiti with a request to display it on the Notice Board of their offices. For Singhara & Makhana-cum-fish Jalkars this notice shall be sent before 30th June. (v) It shall be compulsory for Fishermen Co-operative Societies to submit their applications in the office of District Fisheries Officer with all enclosures before 30th April for short term settlement. But in special circumstances, for reasons to be recorded in writing, the Collector may give a direction to District Fisheries Officer to receive application from the society by 31st May. The last date of submitting application for the settlement of Singhara & Makhana –cum-fish jalkar, shall be 31st July. In special circumstances, for reasons to be recorded in writing the collector may give direction to District Fisheries Officers to receive application from the society by 31st August. (vi) Applications with all relevant documents shall be examined by the District Fisheries Officer within 15 days time from the date of receipt of these applications. If an application is found defective, an information through registered post shall be sent by the District Fisheries Officer giving 15 days time to concerned societies for correction of defects. If no information in respect of defects is given to the society by the end of four weeks from the date of receipt of the application, it will be deemed that the society is competent to get settlement. (vii) If the original or corrected application submitted by the society for settlement is found free from - 4 - defect, the order for settlement of Jalkars shall be issued to society by the District Fisheries Officer before 15th June. After 15th June, but such order, can be issued only with the prior approval of Collector Order for settlement for Singhara & Makhana-cum-fish Jalkar, may be issued by the District Fisheries Officer before 15th September but after 15th September, such order may be issued only with the prior approval of collector. (viii) If more than one Fishermen Co-operative Societies are eligible for settlement of Jalkars in a Block, then settlement of Jalkars shall be made among them in proportion of the number of all classes of Jalkars and the number of the members of them. (ix) The share of the Jalkars of disqualified societies of a block shall be settled for five years by limited bid with the non-defaulter members of that society residing in the same block where the Jalkar is situated. But only one Jalkar shall be settled with one person. (x) Even if the jalkar is not settled after two attempts by a limited bid then it shall be settled by open bid according to provision laid down in section-8. (xi) Reserved Deposit Jalkars of more than fifteen thousand rupees shall be done by limited/open bid for five years under the Chairmanship of the Deputy Director Fisheries of the Range. (xii) The settlement shall be made on the following conditions :- (a) If sum total of Reserve deposit of settled Jalkars is less than twenty thousand rupees, the total amount shall be deposited in one installment within twenty one days of settlement. (b) If sum total of Reserve deposit of settled Jalkars in more than twenty thousand rupees, 50% of the total Reserve deposit amount or twenty thousand rupees which ever is more shall be deposited within twenty one days of the settlement and second installment shall be deposited before 31st January but for Singhara & Makhana-cum-fish - 5 - Jalkar, 2nd installment shall be deposited before 31st March: Provided that facility of payment of total Reserve deposit amount in two installments shall be given only to those societies which have also given the facility of payment of total amount in two installments to their members. (c) If the amount is not deposited by the fixed date, the District Fisheries Officer shall immediately issue show cause notice to the society and after 15 days of the show cause shall cancel the settlement. If the settlement is cancelled these Jalkars shall be settled with the members of the society as per the provision of sub section (9) of section 7 of this Act. (d) The amount of Reserve deposit fixed for settlement of Jalkars with members by societies shall not be more than 15 % of the amount of Government reserve deposit. (e) Within twenty one days of settlement, the society shall make available to the District Fisheries Officer, Parwana issued along with a village-wise and panchayatwise list of amount received for settlement from its fisherman / fishermen members. Issuance of a provisional parwana shall be prohibited: Provided that if the settlement is in contravention of the provisions of section 10 of this Act, the Parwana shall be issued only after due correction of that settlement of that particular Jalkar as per provision of section 10. (f) It will be the responsibility of the District Fisheries Officer to enter into a registered agreement with the society within two weeks of issuing Parwana: Provided that after lapse of the said period, order for executing agreement may be given by Collector after obtaining explanation. In a situation where agreement is not executed in the extended period, settlement may be cancelled by District Fisheries Officer after the approval of Collector and after asking show cause from the society. Expenses incurred on registration shall be borne by society. (g) The Reserve Deposit amount shall be deposited - 6 - after incorporating the annual percentage increase in the Reserve Deposit Amount as recommended by the ‘Reserve Deposit Fixation Committee’. (h) On the demand of District Fisheries Officer and his senior Departmental officers, the Society will make available for inspection of records/ Register/ papers concerning with distribution of Jalkars. (i) In case of violation of the terms of settlement, the District Fisheries Officer may cancel the settlement with prior approval of the Collector. But, before obtaining the approval of the Collector the society shall be given an opportunity to defend its case and to take corrective steps. (j) If society refuses to take settlement of a particular Jalkar or all Jalkars before the expiry of the current settlement period and enclose a resolution of its managing committee with its application then settlement of this/ these Jalkars shall be cancelled for the next financial year and settled by limited bid for the valid period of reserve jama as per procedure laid down in section 8. 2. A careful reading of clause (v) of Section 7 would show that the application has to be made by the concerned fishermen cooperative societies in the office of the District Fisheries Officer for short term settlement before 30th April of the year and in special circumstances, for the reasons to be record in writing, the Collector may give a direction to the District Fisheries officer to receive application from the society by 31st of May, of the year. The language employed in clause (v) is in mandatory form and no deviation or - 7 - departure therefrom is permissible. 3. It is admitted case of the appellant-society that not only that the application was not made before 30th April, it was not even made before 31st May, but actually it was made on 10th June, 2007. 4. The application was hopelessly barred under clause (v) of Section 7. 5. The consideration of the matter by the single judge, therefore, cannot be flawed. 6. LPA is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J. Sunil