IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 3826 of 2008 KUSHESHWAR ASTHAN PURBI PRAKHAND MATSYAJEEVI SWAWLAMBI SAHKARI SAMITI LIMITED Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr Basant Kumar Choudhary, Sr Advocate For respondent No 4 : Smt M Chatterji, Advocate For the S t a t e : Mr Jawed Gaffar Khan, JC to SC 17 ------------ 3 16.07.2008 Kusheshwar Asthan Purbi Prakhand Matsyajeevi Swawlambi Sahkari Samiti Limited is the petitioner. This Cooperative Society was retgistered under the 1935 Bihar and Orissa Cooperative Societies Act. On coming into force of the Bihar Self Supporting Cooperative Societies Act 1996, as per the provisions contained therein, this 1935 registered Cooperative Society converted into a Society now registered under the 1996 Cooperative Act. Respondent No 4 is yet another Cooperative Society which was incorporated and registered under the 1996 Cooperative Act directly. Unfortunately, both Societies have identical names and even their area of operation is the same though their registered addresses are different and they have different Management Committees and their shareholders are different. The grievance of the petitioner-Cooperative Society is that in terms of the proviso to Section 14 of the Bihar Fish Jalkar Management Act 2006, it is incumbent upon the appellate authority to dispose of an appeal within two months. It is submitted that there is further provision in the said section which prohibits any interim order and also prohibits 2 investment by any party in the disputed jalkar for the period of an appeal. The submission of the learned counsel is that taking in view these provisions as a whole and the use of the word “essentially” in the proviso, the provision is mandatory and if the appeal is not disposed of within two months then the officer looses jurisdiction in the matter and the appeal would abate as the provisions are mandatory. He has drawn my attention to the Hindi Text of the enactment as well. In the present case, it appears that short term settlement of fish jalkars were made in favour of the petitioner-Cooperative Society by the District Fisheries Officer. Respondent No 4-Cooperative Society objected to the same and filed an appeal before the Director, Fisheries. The said appeal remained pending for over two months and that brought the petitioner to this Court. During pendency of this application, the appeal was allowed and decided against the petitioner whose settlements were cancelled. Those orders have been brought on record by separate I As. Learned counsel submits that having not decided the appeal within two months as mandatorily provided by the proviso to Section 14 of the Act, the Officer could not proceed as he became functus officio and the appeal should have abated. Having considered the matter and heard the parties with their consent, this writ application is being disposed of at the stage of admission itself. In order to appreciate the contention as made by the petitioner, it would be appropriate to refer the proviso to Section 14 which reads thus : 14. Appeal and Revision:- 3 (i) … … … … … … (ii) … … … … … … (iii)… … … … … … (iv) … … … … … … The appeal shall be disposed of within two months essentially after giving an opportunity of hearing to the parties concerned under the process fixed by the government. In the disposal of appeal, no interim order/stay order shall be passed. No investment shall be made in the disputed Jalkars by any party in the period of an appeal. From reading of the aforesaid, it would appear that the Legislature have provided that appeals shall be disposed of within two months essentially. In my view, the word “essentially” qualifies the first part that is period of two months and not as apparently appears, the latter part with regard to giving of an opportunity of hearing to the parties. This is clear if we refer the Hindi Text of the Act which in the State of Bihar, by virtue of constitutional provisions, is the official Text. The proviso in Hindi Text of the Act is quoted hereunder : 14. Appeal avam revision :- (i) … … … … … … (ii) … … … … … … (iii)… … … … … … (iv) … … … … … … Appeal ka nispadan sarkar dwara nirdharit prakirya ke antargat sambandhit pachkaron ko sunwai ka ek avsar dete hue do mah ke andar anivarya rup se kar diya jayega. Is nispadan mein koi antarim adesh/asthanadesh parit nahin kiya jayega. Appeal ki avadhi mein kisi pachkar dwara vivadit jalkaron mein koi nivesh nahin kiya jayega. Nowhere in the Act is any consequence provided for failure to dispose of the appeal within a period of two months. For a provision to be held to be mandatory, one of the important considerations is that a consequence is always provided. In my view, learned counsel is not correct in saying that either the office becomes functus officio or the 4 appeal must abate for both these contingencies are pieces of substantive law and cannot be inferred. The Legislature must provide specifically for these contingencies. No such contingencies have been provided. All that can be said is that though proviso is couched in a mandatory language, it is directory in application. Accepting the contention of the learned counsel would lead to chaotic, undesirable and unreasonable results. A party could very well delay the proceedings and then win the battle without even fighting it by getting the appeal abated. The appeal lies to senior offices who may have other important matters because of which they are unable to take up the matter in right earnest and dispose it of within two months. For their failure or for failure of the official machinery, the appellant cannot be made to suffer. In other words, it is only a pious directive to the appellate authority to make all reasonable efforts to dispose of the appeal without inordinate delay and preferably within two months. That is the only reasonable, logical interpretation of the said provision. In case a person is unable to get the appeal disposed of within a period of two months then if he suffers because of pendency of the appeal, it is always open to him to move this Court for a mandamus but surely the appeal will not abate nor the officer becomes functus officio. In that view of the matter, the argument merits no consideration. So far as the appellate order is concerned which has now been brought on record, the petitioner prays that consequent thereto, effect orders have already been passed and petitioner would take such remedy against those orders as may be advised to him but is not 5 challenging the same before this Court as remedy is available elsewhere. With the aforesaid observation, the writ petition is dismissed. M.E.H./ (Navaniti Prasad Singh)