IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1123 of 2009 1. PRAKHAND BARIARPUR MATSYAJIVI SWABLAMBI SAHKARI SAMITI LTD., BARIARPUR (MUNGER) THROUGH ITS CHIEF EXECUTIVE SAUDAGAR SAHNI SON OF LATE NASIB SAHNI, RESIDENT OF VILLAGE-BARIARPUR BASTI, PO & PS – BARIARPUR, DISTRICT-MUNGER. 2. SAUDAGAR SAHNI SON OF LATE NASIB SAHNI, RESIDENT OF VILLAGE-BARIARPUR BASTI, PO & PS – BARIARPUR, DISTRICT-MUNGER. … … PETITIONERS/APPELLANTS Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, ANIMAL HUSBANDRY AND FISHRIES DEPARTMENT, BIHAR PATNA. 2. THE JOINT SECRETARY, ANIMAL HUSBANDRY AND FISHERIES DEPARTMENT, BIHAR, PATNA. 3. THE DIRECTOR, FISHERIES DEPARTMENT, BIHAR, PATNA. 4. THE JOINT DIRECTOR, FISHERIES DEPARTMENTAT, BIHAR, PATNA. 5. THE DEPUTY DIRECTOR, FISHERIES, BHAGALPUR. 6. THE DISTRICT FISHERIES OFFICER-CUM-CHIEF EXECUTIVE OFFICER, MUNGER. ….. ….. RESPONDENTS/RESPONDENT IST SET 7. BARIARPUR FISHERMEN COOPERATIVE SOCIETY LTD., BARIARPUR THROUGH ITS SECRETARY SAHENDRA MANDAL SON OF LATE THAKUR MANDAL, RESIDENT OF VILLAGE-PARIYE, P.S.-BARIARPUR, DISTRICT-MUNGER. …. INTERVENOR RESPONDENT/RESPONDENT 2ND SET. ---------- For the appellants : Mrs. Mahasweta Chatterjee, Advocate For the State : Mr. Lalit Kishore, A.A.G. 3 For Respondent no. 7 : Mr. Pasupati Prasad Sinha, Advocate ----------- - 2 - PRESENT - THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (15 .04.2010) As per Dipak Misra, C.J. – Calling in question the defensibility of the order dated 13.7.2009 passed by the learned Single Judge in C.W.J.C. No. 15582 of 2008, the present intra-court appeal has been preferred under Clause X of the Letters Patent. 2. The appellants-petitioners (hereinafter referred to as „the appellants‟), being dissatisfied with the order dated 22.09.2008 passed by the Joint Secretary, Animal Husbandry and Fisheries Department cancelling the settlement of the appellants on the ground that the order of settlement was violative of the provisions engrafted under Sections 7(i), 7(iii) and 7(iv) of the Bihar Fish Jalkar Management Act, 2006 (hereinafter referred to as „the Act‟), invoked the jurisdiction of this Court under Article 226 of the Constitution of India and prayed for issuance of a writ of certiorari for quashment of the same. 3. It was asserted in the writ petition that a notice was issued to the respondent-society on 8.6.2006 to take settlement of eight Jalkars situate in the Anchal of Bariarpur, Munger. At that time, the society, the 7th respondent herein, stood - 3 - superseded and an Administrator was appointed who, vide letter dated 20th of June, 2006, expressed his inability to take the settlement of the Jalkars. At that stage, 45 members of the respondent no. 7, Bariarpur Fishermen Cooperative Society Ltd., made an application for taking settlement of the Jalkars which they withdrew afterwards on 19.10.2006 by stating that the Jalkars in question had dried up due to delay in settlement and, as such, they did not wish to take settlement of the said Jalkars. After refusal of the society and its members, the eight Jalkars were settled in favour of the appellant-society with effect from 01.07.2006 till the 30th of June, 2011. Thereafter, the society deposited a sum of Rs. 95,000/- as first instalment on 8.11.2006 and Rs. 93,900/- towards second instalment on 31.01.2007. After approval of the competent authority, parwana was issued in favour of the appellant-society for 2006- 2007, i.e., from 01.07.2006 to 30.06.2007. Thereafter, the appellant-society distributed the Jalkars amongst its members as contemplated under Section 7(xii)(e) of the Act. Accordingly, all the members came in possession over their respective Jalkars and started cultivating fish by investing huge sum of money. A registered agreement was executed by the District Fisheries Officer in favour of the appellant-society on 15.03.2007. - 4 - 4. As pleaded, the society again deposited a sum of Rs.1,06,488/- on 18.07.2007 and Rs.86,190/- on 31.01.2008 for 2007-2008. Accordingly, parwana was issued for the year 2007-2008. Similarly, the amount was deposited for the year 2008-2009. 5. It was contended before the writ court that the society was carrying on business for three consecutive years but all of a sudden, without notice, vide memo no. 2437 dated 22.09.2008 issued on 23.09.2008, the settlement of the eight Jalkars with the appellant-society stood cancelled by virtue of an order passed by the Joint Secretary, Animal Husbandry and Fisheries Department, Bihar with further direction that the Jalkars should be settled amongst the two societies functioning in that area. It was urged before the learned Single Judge that the initial settlement was not challenged by way of appeal as contemplated under Section 14(i) of the Act and there was no provision in the Act conferring power on the Joint Secretary to cancel the settlement. It was also put forth before the writ court that the respondent no.7-society was the defaulter at the time of the settlement and, therefore, would not have been considered for the grant of settlement of the Jalkars under the provisions of the Act. It was contended before the learned Single Judge that the respondent no. 1 had acted without jurisdiction and beyond - 5 - the provisions of the Act by cancelling the settlement made with the appellant-society inasmuch as the settlement of the fishery jalkars is in consonance with the provisions of the Act and no power is vested in the State Government to cancel any settlement made by the District Fisheries Officer as an appeal is provided under Section 14(i) of the Act which is required to be preferred within 30 days of the order of settlement. It was also urged that there has been violation of the principles of natural justice and, therefore, the order was vitiated in the eye of law. 6. The learned Single Judge adverted to the factual matrix and expressed the view that as the order passed by the Secretary of the State Government was violative of the principles of natural justice, the same was unsustainable and, accordingly, quashed the order impugned. However, the learned Single Judge further expressed the view that the Secretary Department of Animal Husbandry and Fisheries, Patna may issue notice to the respondents and the appellant-society both by ordinary process and under registered cover, call for the records and pass an order as he thinks fit and proper, and at that juncture, he should also take note of the fact that out of the total period of settlement, three years have expired. - 6 - 7. Challenging the legal tenability of the order passed by the learned Single Judge, it is submitted by Mrs. Chatterjee, learned counsel for the appellants, that when the settlement of Jalkar is governed by an Act, the Joint Secretary who has not been conferred any power cannot usurp the same and proceed to unsettle or dislodge the statutory orders. It is urged by her that the respondent-society was a defaulter at the time of the settlement and even if it is cured thereafter, it would not get relegated to the date of the settlement to make it qualified to participate in the process of the settlement. It is her further submission that when the learned Single Judge had taken note of the fact that out of the total period of settlement of five years, three years have expired, there was no justification to get the issue reopened. 8. Mr. Pasupati Prasad Sinha, learned counsel for the respondent no.7, supporting the order passed by the learned Single Judge submitted that the State Government has the power to remedy any grievance and, therefore, the settlement in favour of the appellant-society was rightly interfered with, but as there was violation of the principles of natural justice, the learned Single Judge is absolutely justified in granting liberty to the said authority to proceed after following the due process of law. - 7 - 9. To appreciate the rivalised submissions raised at the Bar, it is appropriate to scan the anatomy of the various provisions of the Act. The said Act has been brought into existence to provide for settlement of Jalkars relating to the Department of Animal Husbandry and Fisheries. Section 5 of the Act deals with settlement. There is a reference to short term settlement and long term settlement. According to the said provision, the short term settlement of Jalkars would be for a term of five years after approval of the competent authority as mentioned in sub-section (ii) of Section 7 of the Act. Short term settlement has been dealt with under Section 7 of the Act. Section 7(i) provides as follows: “7(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. Section 7(ii) deals with the competent authority for approval of the short term settlement of the Jalkar. Sub-section (iii) of Section 7 deals with the procedure for delineation of application submitted before the District Fisheries Officer. The said provision is as under: - 8 - “7(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 preceding 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. Sub-section 7(iv), which has been commended to us, is as follows: “7(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, Conerned Sub-divisional Officers, Circle Officers, Block Development Officers, - 9 - Pramukh of 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.” 10. On a perusal of the aforesaid provisions, it is clear as crystal that settlement has to be made in favour of the non- defaulter fishermen Co-operative Societies, the competent authority is the District Fisheries Officer for settlement of Jalkars and certain documents are to be filed by the societies who can claim to be considered for grant of such settlement. As is manifest from the assertions made in the writ petition as well as in the appeal, the settlement was made in favour of the appellant-society and at that juncture, the respondent no.7- society was a defaulter society. The said society had not challenged the order of settlement by way of appeal. In this regard, we may refer with profit to Section 14 which deals with appeal and revision. The said provision is reproduced below: “14. Appeal and Revision:- (i) An appeal against all decisions regarding short term settlement taken by District Fisheries Officer and Deputy Director may be filed before the Director Fisheries. (ii) An appeal against of all decisions taken by Collector and Director Fisheries may be filed in the Court of Departmental Commissioner. - 10 - (iii) An appeal against all decisions regarding short term settlement taken by the government may be filed in the court of Member, Board of Revenue. (iv) Appeal may be filed within thirty days from the date of the original order. 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.” 11. Relying on the said provision, it is submitted by Mrs. Chatterjee that if the respondent-society was grieved, it could have filed an appeal before the competent authority, but it chose not to do so. The learned counsel for the respondent- society submitted that the State Government has the authority to take up the matter suo motu to rectify any mistake. 12. On a perusal of the order passed by the Joint Secretary of the Department, as contained in Annexure-12 dated 23.09.2008, it is perceptible that he has passed an administrative order inasmuch as there has been no proceeding. When there are statutory provisions governing the rights of appeal or revision, we are afraid, the Joint Secretary, Animal Husbandry and Fisheries Department could not have passed an order without any authority vested in him. In the case at hand, - 11 - the settlement was made by the District Fisheries Officer under Section 14(i) of the Act, and hence, an appeal could have been filed before the Director of Fisheries. The same was not taken recourse to. That apart, an appeal is required to be preferred within thirty days from the original order. The settlement was made on 01.07.2006. The same remained unchallenged. The Joint Secretary interfered with the order being moved by the respondent no.7 in the year 2008 and that too after clearing the dues. Such a move was totally inconceivable in law. 13. Another aspect which is required to be taken note of is that the respondent-society was a defaulter at the time when the settlement of jalkars took place. Once it was a defaulter under the scheme of the statutory provisions, it was not eligible for consideration. The submission of the learned counsel for the respondent no.7 is that once the dues are cleared and the society becomes a non-defaulter society, it becomes eligible and qualifies for consideration. The said submission, in our considered view, is totally without substance. In this context, we may fruitfully refer to the decision in Katra Anchal Matsyajivi Swablambi Samiti Ltd. Versus The State of Bihar and others, 2004(2) BLJ 65 wherein the learned Single Judge in paragraph 6 has expressed the view as follows: “ 6. I have perused the materials on record and considered the submissions of learned - 12 - counsel for the parties. It appears to me that Respondent no.9 was not eligible for consideration on the date of the aforesaid two settlements in favour of the petitioner. Therefore, subsequent deposit of the dues cannot entitle him for reconsideration, nor will it empower the respondent authorities to cancel the settlement finally made in favour of the petitioner. The two batch of settlements were for a period of three years each, namely, for the periods 2001-04 and 2002-05. Settled affairs cannot be permitted to be unsettled in the manner as has been done by the respondent authorities. The same could have been cancelled if the petitioner itself was disqualified on the date of the settlement or on account of serious procedural irregularities or because of having incurred any disqualification after the settlement. The settlement so made cannot be cancelled on the ground that another Co-operative Society has later on become eligible. I must state the purpose of Parwana. It appears to me that the short-term settlement of jalkars is normally made for a period of three years, and the Parwana is issued year after year mainly for the reason that the settlee is enable to deposit the reserve Jama year after year. Many of them may not be able to deposit the reserve Jama for the three years at a time. Such Co-operative Societies after all are comprised of poor fisherman. The impugned action of the respondent-authorities is bad in law.” 14. We are disposed to think that the view expressed in Katra Anchal Matsyajivi Swablambi Samiti Ltd (supra) is absolutely correct being in accord with the statutory stipulation and we concur with the same. 15. In view of the aforesaid analysis, when the respondent no.7 was a defaulter at the time when the process of settlement of jalkars took place and did not prefer an appeal - 13 - under Section 14(i) of the Act and had slept over for a period of two years to move any authority there is no justification or warrant on any authority to entertain any application to cancel or annul the settlement of jalkars in favour of the present appellant-society and, therefore, the grant of liberty by the learned Single Judge to the Secretary, Department of Animal Husbandry and Fisheries, Bihar, Patna to proceed after following the principles of natural justice and pass appropriate order as he thinks fit and proper is not sound in law. 16. Resultantly, the appeal is allowed and the order passed by the learned Single Judge is set aside. There shall be no order as to costs. (Dipak Mishra, C.J.) (Mihir Kumar Jha, J.) Patna High Court Dated, the 15th April, 2010. A.F.R Sunil