IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.983 of 2009 1. NOORSARAI PRAKHAND MATSYAJIVI SWABLAMBI SAHKARI SAMITI LTD. MEYAR through its Chief Executive Md. Munniruddin @ Bhuttoo, son of late Fakir Mohammad, resident of Mohalla Basarbigha, P.S. Sohsarai, District Nalanda 2. Md. Munniruddin @ Bhuttoo son of late Fakir Mohammad, resident of Mohalla Basarbigha, P.S. Sohsarai, District Nalanda 3. Ram Briksh Jamadar son of late Rohan Jamadar, resident of village Meyar, P.S. Noorsarai, District Nalanda, Chairman of Noorsarai Prakhand Matsyajivi Swablambi Sahkari Samiti Ltd. Meyar … Petitioners-Appellants. Versus 1. THE STATE OF BIHAR 2. The Director Fisheries, Bihar, Patna 3. The Deputy Director Fisheries, Bihar, Patna 4. The District Fisheries Officer cum Chief Executive Officer, Nalanda 5. Noorsarai Matsyajivi Sahyog Samiti Ltd. Mamurabad through its Chairman Arbind Prasad, son of Lakshmi Chandra Prasad, resident of village Mamurabad, P.O. Mirchaiganj, P.S. and District Nalanda 6. Noorsarai Prathamik Matsyajivi Swablambi Sahkari Samiti Ltd. Begampur through its Chief Executive Bhushan Kumar son of not known to the petitioner, resident of village Begampur, P.S. and District Nalanda … Respondents-Respondents. ----------- For the Appellant : Mrs. M. Chatterjee, Advocate For the Respondents : Mr. Pashupati Pd. Sinha, Advocate Mr. Lallan Kumar, A.C. to G.P.-22 ---------- 3. 17.2.2010 Heard counsel for the parties. The appellants- writ petitioners in this appeal have assailed the order of the learned Single Judge dated 23.6.2009 passed in C.W.J.C.No. 1686/2009 dismissing 2 their writ application by affirming the order dated 14.11.2008 passed by the Director, Fisheries in Appeal Case No. 23/2008. Mrs. Mahashweta Chatterjee, learned counsel for the appellants- writ petitioners, has submitted that the finding recorded by the learned Single Judge that the impugned order in the writ application dated 14.11.2008 passed by the Director, Fisheries, Bihar was unsustainable, inasmuch as no consent was given by the appellants- writ petitioners for settlement of Dighi Pokhar in favour of Noorsarai Matsyajivi Sahyog Samiti Ltd. and yet the Director had proceeded to dispose of the appeal on the basis of alleged consent with the parties. She has consequently also assailed the finding of the learned Single Judge as with regard to maintainability of the writ application against the alleged consent order of the Director of Fisheries and/or on the ground that the appellant-writ petitioners' society had also acted in terms of the settlement order on the basis of the appellate order of the Director, Fisheries. Counsel for the State and the private 3 respondent no.5, on the other hand, has supported the impugned order passed by the learned Single Judge by taking a plea that it was not open for the appellant-writ petitioners to question the consent order passed by the Director, Fisheries in a writ application, especially when they had also availed the benefit of settlement under the same consent order of the Director, Fisheries. In the light of the aforementioned submissions at the Bar we have carefully gone into the materials on records including those referred to in the Memo of Appeal and the connected writ application. On perusal of such records of the writ application and especially Annexure „A‟ to the counter affidavit it is found that a list of 23 Jalkars was made subject matter of mutual consent in terms of section 7(viii) of the Bihar Jalkar Prabandhan Adhiniyam, 2006 and its Sansodhan Adhiniyam, 2007, wherein two Jalkars, namely, Sangrakha Pokhar and Dighi Pokhar were included in the list against the name of Noorsarai Matsyajivi Sahyog Samiti Ltd., Mamurabad. P.O. Mirchaiganj, Nalanda and the remaining 21 Jalkars were mentioned in the list 4 against the name of Prathmik Matsyajivi Sahyog Samiti Ltd., Meyar, P.O. Kaidi Meyar, Nalanda and the aforesaid list contained the signature of appellant no.2 Md. Munniruddin @ Bhuttoo as also Arbind Prasad in capacity of the Chief Executive and Secretary of the two societies respectively. This list, as contained in Annexure „A‟ to the counter affidavit, was duly described in paragraph no. 7 of the counter affidavit in the following manner: “That it is stated that secondly Sri Arbind Prasad (respondent no.5) and Md. Moniruddin (writ petitioner) submitted a list of Jalkars for distribution Jalkars on mutual consent.” From the rejoinder to the counter affidavit filed by the appellants- writ petitioners it is found that while dealing with paragraph no.7 of the counter affidavit it was stated by the appellants- writ petitioners that: “ … … … As far as Annexure A is concerned it is categorically denied by the petitioner and it is a manufactured one after taking signature of the petitioner on plain paper on good faith … ….” 5 Thus, it would be clear that appellant no.2, who had himself filed reply to the counter affidavit, did not deny that the signature on Annexure „A‟ was executed by him rather his only explanation was that such signature was given on a plain paper. Now if the content of Annexure „A‟ to the counter affidavit is perused it would be found that it is a neatly typed document in a prescribed proforma describing it to be a mutual consent letter in terms of section 7(viii) of the Act for the purpose of distribution of Jalkar. In that view of the matter, it would be difficult for this Court to hold that the signature of appellant no.2 below the endorsement in typing “vkilh lgefr ds lkFk lefiZr dj jgk gwW** and above “eq[; dk;Zikyd** (Md. Munniruddin @ Bhuttoo) was a manufactured document. This Court in fact while analyzing this aspect would also find that the Director of Fisheries in the impugned order dated 14.11.2008 had categorically recorded that: ^^vkilh lgefr ls tydj caVokjk dk ,d lwph izLrqr fd;k x;k gS] ftlij Jh vjfoUn izlkn ,oa eks0 equhj 6 mn~nhu dk gLrk{kj vafdr gS] tks fuEuor gS%& uwjljk; eRL;thoh lg;ksx lfefr fy0 eeqjkckn] iks0 fepkZbZxat] ukyank ds fgLlk es nks iks[kj dze'k% lxj[kk iks[kj ,oa fnX?kh iks[kj rFkk izkFkfed eRL;thoh lg;ksx lfefr fy0] es;kj iks0 dSMh ers;lkj] ukyank ds fgLlk esa bDdhl iks[kj dze'k% vfg;kiqj iks[kj] vt;iqj iks[kj] cljk iks[kj] fdlfefjpd iks[kj] enkjk iks[kj] ijklh iks[kj] x.kiqjk iks[kj] bZlkiqj iks[kj] jlyiqjk iks[kj] jruiqjk iks[kj] >kaok iks[kj] ufn;kSuk iks[kj] txnh'kiqjk iks[kj] dsobZ iks[kj] xksnke rkykc] dSMh iks[kj] ifjvkSuk iks[kj] lqyrkuiqj iks[kj] ukjh iks[kj] NksVdh cM+dh iks[kj ,oa HkquS;k iks[kjA rhuksa lfefr;ksas dh vkilh lgefr ls vuqjks/k fd;k x;k gS fd vc rhuksa i{k bl fookn esa my>uk ugha pkgrs gSA rhuksa ds chp lkjs fookn dk lek/kku gks x;k gSA lkFk gh vuqjks/k fd;k x;k gS fd rhuksa lfefr;ksa ds loZlEefr ds cSBd esa fnukad 25-7-2008 dks tks izLrko ikl fd;k x;k gS] ds vkyksd esa vxzrj dkjZokbZ gsrq ftyk eRL; inkf/kdkjh&lg&eq[; dk;Zikyd inkf/kdkjh] ukyank dks vkns'k fn;k tk;A mi;qZDr lgefr i= esa vafdr rF;ksa ds vkyksd esa fLFkfr Li"V gksrh gS fd rhuksa lfefr;ksa vkil esa ,d nwljs dks tydj nsus ds fy, rS;kj gSA vr% ftyk eRL; inkf/kdkjh&lg&eq[; dk;Zikyd inkf/kdkjh] ukyank dks vkns'k fn;k tkrk gS fd rhuksa lfefr;ksa ds vkilh lgefr ds vuqlkj vxzrj dkjZokbZ dh tk;A 7 bl vkns'k ds lkFk bl vihyokn dk fu"iknu fd;k tkrk gSA** In the opinion of this Court Annexure „A‟ to the counter affidavit containing the signature of appellant no.2 followed by the order of the Director of Fisheries strictly in terms of consented list would leave nothing for speculation that the parties had furnished a consented list of 23 Jalkars and the appeal was disposed of in terms of such consent of the parties. This Court, however, must take note of the submission of Mrs. Chatterjee that as a matter of fact only one compromise petition dated 7.12.2008 was filed before the Director, Fisheries and that did not contain any list of 23 Jalkar and as such, the same cannot be treated to be part of the compromise. This Court, however, would find that even this plea of the appellant- writ petitioners would not help their cause, inasmuch as the Director of Fisheries had also taken note of the aforementioned compromise petition separately in the impugned order by recording therein that: 8 ^^fnukad 7-11-2008 dks izfroknh&2 ds fo}ku vf/koDrk Jh foHkwfr jatu lksuHknz mifLFkr gks dj rhuksa lfefr;ksa ds O;fDr dze'k% Jh vjfoUn izlkn] ¼vihykFkhZ lfefr ds ea=h½] Jh equhjmn~nhu mQZ HkqV`Vks] ¼izfroknh&2 dh lfefr ds eq[; dk;Zikyd½ ,oa Jh 'kf'k Hkw"k.k dqekj] izfroknh&3 dh lfefr ds eq[; dk;Zikyd½ ds la;qDr gLrk{kj ls vkilh lgefr dh dkxtkr izLrqr fd;k ftlij funs'kd eRL; ds lkeus Hkh rhuksa i{kksa us viuk viuk gLrk{kj lgefr i= ij vafdr fd;kA rhuksa ds vkilh lgefr ds dkxtkr ds lkFk vyx vyx 'kiFk i= Hkh layXu fd;k gqvk gS ftlesa 'kiFk dRRkkZ }kjk dgk x;k gS fd bUgksaus lgefr i= ij vijh bPNk ls ,oa fcuk fdlh Hk; ;k ncko ds gLrk{kj fd;k x;k gSA uwjljk; vapy vUrxZr csxeiqj fLFkr fnX?kh iks[kj tks lcls cM+k tydj gS] dk T;knk fookn rhuksa lfefr;ksa ds chp jgrk gSA fnukad 20-7-08 dks izLrko la[;k&2 esa ikfjr fu.kZ; esa mYys[k fd;k x;k gS fd%& ^^Jh deys'k teknkj us voxr djk;k fd ftyk eRL; inkf/kdkjh lg eq[; dk;Zikyd inkf/kdkjh] ukyank ds vkns'k la[;k 694 fnukad 26-9-2007 ,oa la'kksf/kr vkns'k i=kad 208 fnukad 21-4-08 }kjk uwjljk; iz[kaM eRL;thoh Lokoyach lgdkjh lfefr fy0] es;kj] iks0 dSMh] es;kj ds eq[; dk;Zikyd Jh equhj mn~nhu mQZ HkqV~Vks us cUnkscLrh izkIr fd;k gS ftlds mijkUr ge lHkh iPphl lnL;ksa ds xzwi usrk jke o`{k teknkj dks f'kdkjekgh djus ,oa eRL; cht Mkyus ds fy, miyC/k djk;k x;k gSA le; ij lHkh lnL; ,dtqV 9 ugha gksrs gSA ftlls mDr rkykc ¼fnX?kh iks[kj ftldk [kkrk ua0 332 [ksljk uEcj 2024 ,oa jDck ua0 74-60 ,dM+½ dk lgh <ax ls eRL;ikyu ugha gks jgk gSA vr% loZlEefr ls mijksDr rkykc geyksxksa ,oa eq[; dk;Zikyd ds vkilh lgefr ds vk/kkj ij Jh vjfoUn izlkn] ea=h uwjljk; eRL;thoh lg;ksx lfefr eeqjkckn dks erL; ikyu gsrq nsus dk fu.kZ; fy;k x;k ftls lHkh yksxks us lg"kZ Lohdkj fd;kA** lgefr i= esa mYys[k fd;k x;k gS fd fnX?kh iks[kj ftldk [kkrk ua0 332 [ksljk uEcj 2024 ,oa jDck 74-60 ,dM+ gS izfroknh&2 lfefr ds }kjk 25 xzwi yhMj ds chp cjkcj&cjkcj fgLlk forj.k fd;k x;k gSA** Thus, from the aforementioned extracted portion of the order of the Director it would be clear that apart from the compromise petition there was also a consented list of Jalkar submitted by the appellants and respondent no.5 with the signature of appellant no.2 and Secretary of respondent no.5. In the said compromise petition also it was clearly mentioned that: “4. That there are 45 fish jalkars in Noorsarai Prakhand in which 16 jalkars are settled in favour of appellant society for 1.4.2005 to 10 31.3.2008. 5. That in the aforesaid appeal the appellant society and respondent no.2 and 3 societies do not wants to contest the case further because the dispute regarding settlement of jalkars was amicably settled in outside the court with the help of well wishers. 6. That after the settlement of Dighi Pokhar Jalkar situated at Begampur in Noorsarai Prakhand Khata no. 332, Khesra No. 2024, Area 74.60 were distributed equally among 25 group leaders by respondent no.2 society on 20.7.2008 all the group leaders elected Ram Briksh Jamadar as Chief Group Leader for the purpose of cleaning the jalkar as well as for collecting revenue as well as fishing in accordance proposal/ Resolution no.2 and further the aforesaid Ram Briksh Jamadar deputed Arbind Kumar as the Secretary of appellant society of Dighi Pokhar Jalkar for the purpose to look after the jalkar of Dighi Pokhar for the year 2010/2011. 7. That in the light of compromise reached among the three contesting societies (appellant as well as respondent no. 2 and 3) the aforesaid societies have no any grievance 11 in this case so all the societies have decided collectively not to pursue the case further.” Thus, from the reading of the joint compromise petition containing the signature of appellant no.2 as well, it would be clear that the appellants had given up their claim for Dighi Pokhar in favour of the Society, respondent no.5, represented by its Secretary Arbind Prasad. In such circumstances, this Court would find that it is not in dispute that the appellants do admit the genuineness of the compromise petition including the signature of appellant no.2 with date of 7.11.2008, as contained in Annexure 10 to the writ application. Annexure „A‟ to the counter affidavit containing the list of Jalkar is only in regard to those Jalkar including Dighi Pokhar for which it was said that a compromise had been arrived at outside the court. In that view of the matter, it cannot be said that the Director had incorrectly recorded as with regard to consented list of Jalkar, as contained in Annexure „A‟ to the counter affidavit or his order based on such mutual consent of the parties was vulnerable on any score. 12 Apart from the aforementioned aspect the aspect which would go to the root of the matter and would disentitle the appellants- writ petitioners from assailing a consent order is their conduct which would also equally disentitle them from raising the plea of there being no consented list as contained in Annexure „A‟ to the counter affidavit. In this regard it is to be noted that the appellants- writ petitioners in their writ application have stated that it was only after receiving the copy of impugned order of the Director dated 14.11.2008 that they could realize that it was based on such a consented list of Jalkar (Annexure „A‟) which had never been part of the mutual agreement. In the opinion of this Court, in such a situation the remedy for the appellants- writ petitioners was to seek a review of the order because every court/ Tribunal/ authority has inherent power to correct itself if there is an error of record. The scope of procedural review as understood in the context of administrative law in contradistinction with the substantiate review therefore, could have allowed the appellants- writ petitioners to raise such a plea before the 13 Director himself that Annexure „A‟, the consented list of Jalkar, was never filed by appellant no.2. The appellants- writ petitioners, however, instead of filing a review had filed the writ application and when the respondents in their counter affidavit had again relied on such consented list containing the admitted signature of Appellant no. 2, there was little scope for the learned Single Judge to hold that there was no such mutual consented list. Additionally, this Court would find that based on the aforementioned order of the appellate authority the appellants- writ petitioners had also deposited a sum of Rs. 57,060/- on 15.5.2009 vide Annexure „D‟ to the counter affidavit filed by the respondents in the writ application. Thus, if the appellants had accepted the order of the Director for the purposes of claiming settlement in respect of 21 Jalkar out of the same list (Annexure „A‟ to the counter affidavit) they were subsequently stopped from challenging the order of the Director in a writ application. The appellants- writ petitioners in fact cannot be allowed to approbate and reprobate in respect of the same order of the Director of 14 Surendra/ Fisheries. Thus, on over all consideration of the materials on record we concur with the findings and conclusion arrived by the learned Single Judge and in the process do not find any merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own cost. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.)