CIVIL WRIT JURISDICTION CASE No.1403 OF 2009 WITH CIVIL WRIT JURISDICTION CASE No. 3374 OF 2009 WITH CIVIL WRIT JURISDICTION CASE No. 576 OF 2009 ************ 1. SURAJ SAHNI, SON OF CHAIN SAHNI, RESIDENT OF VILLAGE KALYANPUR HARAUNA, POLICE STATION MOTIPUR, DISTRICT MUZAFFARPUR 2. SURESH SAHNI, SON OF SHANKAR SAHNI, RESIDENT OF VILLAGE KALYANPUR HARAUNA, POLICE STATION MOTIPUR, DISTRICT MUZAFFARPUR 3. BACHAN SAHNI, SON OF LATE SHRI SAHNI, RESIDENT OF VILLAGE AND P.O. MAHBAL, POLICE STATION MOTIPUR, DISTRICT MUZAFFARPUR 4. KISHUN SAHNI, SON OF CHHATHU SAHNI, RESIDENT OF VILLAGE HARAUNA, POLICE STATION MOTIPUR, DISTRICT MUZAFFARPUR ……………………………………..…PETITIONERS ( IN CWJC NO. 1403/2009) 1. MAHESH SAHNI, SON OF SHRI BILASH SAHNI, RESIDENT OF VILLAGE BARJI, POLICE STATION MOTIPUR, DISTRICT MUZAFFARPUR 2. RAMASHISH SAHNI, SON OF TENI SAHNI, RESIDENT OF VILLAGE BARJI, POLICE STATION MOTIPUR, DISTRICT MUZAFFARPUR …………………………………………PETITIONERS (IN CWJC NO. 3374/2009) 1. MOTIPUR PRAKHAND MATSYAJIVI SWABLAMBI SAHKARI SAMITI LIMITED, MADHOPUR THROUGH ITS CHIEF EXECUTIVE NISHITH KUMAR, SON OF SHAMBHU NATH CHOUDHARY 2. NISHITH KUMAR, SON OF SHAMBHU NATH CHOUDHARY BOTH OF VILLAGE AND P.O. MADHOPUR, POLICE STATION MOTIPUR, DISTRICT MUZAFFARPUR …………………………………….…….PETITIONERS (IN CWJC NO. 576/2009) VERSUS 1. THE STATE OF BIHAR THROUGH THE SECRETARY, ANIMAL HUSBANDRY AND FISHERIES DEPARTMENT, BIHAR, PATNA 2. THE DIRECTOR, FISHERIES, BIHAR, PATNA 3. THE DEPUTY DIRECTOR, FISHERIES, TIRHUT DIVISION, MUZAFFARPUR 4. THE DISTRICT FISHERIES OFFICER -CUM- CHIEF EXECUTIVE OFFICER, MUZAFFARPUR 5. MOTIPUR PRAKHAND PRATHAMIK MATSYAJIVI SAHYOG SAMITI LIMITED, HARAUNA THROUGH ITS SECRETARY SANT PRASAD SAHNI, SON OF LATE RAM NAUMI SAHNI 6. SANT PRASAD SAHNI, SON OF LATE RAM NAUMI SAHNI 5 AND 6 OF VILLAGE HARAUNA, POST OFFICE MORSANDI, POLICE STATION MOTIPUR, DISTRICT MUZAFFARPUR ……………………………………………………….RESPONDENTS (IN ALL CASES) 2 For The Petitioner :- MS. M.CHATTERJEE, ADVOCATE (IN ALL CASES) MR. VIBHUTI RANJAN SONVADRA, ADVOCATE For respondent no. 6 :- MR. PASHUPATI PD. SINHA, ADVOCATE (IN ALL CASES) MR. DEEPAK KUMAR, ADVOCATE ********** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, J. The four petitioners of CWJC No. 1403 of 2009 and two petitioners of CWJC No. 3374 of 2009 are members of Motipur Prakhand Prathamik Matsyajivi Sahyog Samiti Limited, Harauna (hereinafter referred to as `the Harauna Society’). The Motipur Prakhand Matsyajivi Swablambi Sahkari Samiti Limited, Madhopur Society (hereinafter referred to as `the Madhopur Society’) and its Chief Executive are the petitioners of CWJC No. 576 of 2009. The petitioners of CWJC Nos. 1403 and 3374 of 2009 have challenged the order, dated 5.12.2008 as contained in Annexure 8 passed by the Director Fisheries, Bihar, Patna in Appeal No. 42/2008 whereby respondent no.2 was pleased to quash the letter/memo no. 52, dated 18.1.2008 and the order issued vide letter no. 745, dated 2.6.2008 with a direction to settle the jalkars 3 with effect from 1.7.2008 for the remaining period after making a classification between the two societies. The Madhopur Society, petitioner in CWJC No. 576/2009 has also made a similar prayer that the order passed by the Director Fisheries in Appeal No. 42/2008 should be quashed. Respondent no.5 in the said writ petition is the second society operating in the Anchal which is known as Motipur Prakhand Prathmik Matsyajivi Sahyog Samiti Limited, Madhopur through its Chief Executive Sant Prasad Sahni. The fact is that in Motipur block there are two registered societies, one at Madhopur and the other at Harauna. There are 73 jalkars in the operational area of both the societies. Out of the 73 jalkars 1 jalkar was settled on the basis of term term settlement and, therefore, 72 jalkars were available for short term settlement. Out of the 72 jalkars available, 8 jalkars were settled with the society at Harauna for the years 2008-09 to 2010-11. Therefore, sixty four jalkars were open for settlement with effect from 1.7.2007. Section 7(viii) of the Bihar Fish Jalkar Management Act, 2006 (‘the 2006 Act’ hereinafter) provided that the jalkars are to be settled amongst the fishermen cooperative societies in accordance with the proportion of number of all classes of jalkars and number 4 of members of the society. The Madhopur society has 190 members whereas the Harauna society has got 105 members. Therefore, on the basis of membership the Harauna society was to be settled forty four jalkars whereas the other society was to be settled twenty jalkars with effect from 1.7.2007 to 30.6.2011. It may be mentioned here that as per the provisions of section 3(ii) the jalkars are to be classified into three categories, namely, fine, medium and low by the District Fisheries Officer. Any objection to the classification has to be challenged within a specified period and definitely before the process of settlement begins. Neither societies challenged the classification of the jalkars before the settlement process commenced. Accordingly vide memo no. 52, dated 18.1.2008 44 jalkars of all classes were settled with Madhopur society and twenty jalkars were settled with Harauna society. The case of Madhopur society is that in pursuant of the order, dated 18.1.2008 the society deposited total revenue for the period 2007-08 and parwana was issued to them on 18.2.2008 vide memo no.202. The Harauna society also deposited the revenue for the year 2008-09 and had handed over jalkars to the members of the society. They claim to be in possession of 5 the jalkars in question. In this connection it would be relevant to mention that one jalkar was settled with Harauna society on a long term basis for which the Harauna society failed to deposit the revenue and, therefore, by order no. 759, dated 26.7.2007 the District Fisheries Officer directed the Harauna society to deposit the revenue for the years 2005- 08 failing which the long term settlement with respondent no.5 would be cancelled. The Harauna society preferred an appeal before the Director against the order, dated 26.7.2007 and also preferred an appeal against the settlement of forty four jalkars in favour of Madhopur society which was numbered as Appeal No. 10 of 2008. Both the appeals Nos. 5 and 10 of 2008 were disposed of on 21.4.2008 by a common order. The Director, Fisheries with respect to the objection raised in Appeal No. 10 of 2008 has merely stated that the settlement should be made according to the provisions of 2006 Act whereas with respect to Appeal No.5/2008 the Director has stated that respondent no. 5 i.e. Harauna Society should deposit the revenue within a period of thirty days. In effect it is submitted that the order, dated 21.4.2008 did not set aside the settlement of jalkars in favour of the two societies. In compliance of the order, dated 21.4.2008 twenty jalkars were settled in favour of Harauna Society 6 vide letter no. 578, dated 26.4.2008 subject to certain conditions i.e. they were to pay their dues of Rs. 38,940/- within a period of twenty one days and if they did not pay the said amount within the aforesaid time, their settlement would be cancelled and the settlement would be made in accordance with section 7(ix) to the members of the non- defaulter society. It appears that respondent no. 5 did not deposit the revenue within the stipulated time of twenty days and, therefore, as per provisions of section 7 (IX) of the 2006 Act, the share of jalkars of Harauna society was ordered to be settled by limited bid by the District Fisheries Officer vide letter no. 745, dated 2.6.2008. The Harauna society then filed a representation against the order, dated 26.4.2008 by which they were settled twenty jalkars subject to the conditions mentioned in the letter, dated 26.4.2008 before the District Fisheries Officer. The Director Fisheries vide memo no. 654, dated 10.5.2007 addressed to the Superintendent of Police, Muzaffarpur ordered that the Madhopur society should be restrained from fishing of those jalkars settled with them by order, dated 18.1.2008. The Madhopur society filed CWJC No. 8657 of 2008 before this court which was disposed of by order, dated 26.6.2008 quashing the order of the Director, dated 10.5.2008 and also observing that the Madhopur 7 society should have filed an appeal instead of a representation before the Director Fisheries. In the mean time, as mentioned earlier, the settlement of five/six jalkars were made in favour of members of the Madhopur society in a limited bid wherein a total of six jalkars were settled with the petitioners of CWJC Nos. 1403 and 3374 of 2009 and they claim to have come in possession over the jalkars in question. The Harauna society also filed CWJC No. 9289 of 2008 against letter no. 754, dated 2.6.2008 which indicated that the share of Harauna society would be settled by limited bid as per provisions of section 7(x) of the 2006 Act to the members of the Madhopur society. This court directed that Harauna society should file an appeal and assail the orders, dated 26.4.2008 and 2.6.2008 passed by the District Fisheries Officer before the Director. Accordingly, the Harauna society filed Appeal No. 42 of 2008 which was disposed of by order, dated 5.12.2008 which is under challenged in these three writ petitions. On the basis of the aforesaid facts the dispute boils down between the members of Madhopur society and the society itself, as well as between the Madhopur society and the Harauna society. In the aforesaid backgrounds this court has to examine the validity of the order passed in Appeal No. 42 of 2008. 8 The appellant before the Director Fisheries i.e. the Harauna Society challenged the order, dated 18.1.2008 as well as the order by which settlement made in favour of the appellant society was cancelled. The challenge with respect to the order, dated 18.1.2008 is that twenty jalkars given to the appellant Harauna society were not properly classified and they were given jalkars of low category. It is said that the appellant objected to the classification vide letter no. 937, dated 23.3.2007 which was not properly considered. It is also the case of the appellant that the settlement made by limited bid ought not to have been made. Apart from this the appellant has also stated that the jalkars have not been properly divided between the two Panchayats and since there was no agreement between the two societies, the matter ought to have been referred to the Reserve Jama Committee. It is stated that he has raised these objections in Appeal Nos. 10 and 5 of 2008, the Director had ordered that the Harauna society should make payment of the dues pending against the Society within thirty days. It was further ordered that the settlement should be made in accordance with law. By order, dated 21.4.2008 the Director had ordered that the appellant should deposit its dues for the year 2005-06 and also pay the reserved jama of the year 2006-07 within a period of thirty days. 9 In reply the Madhopur society, respondent no. 2 in Appeal No. 42 of 2008 has stated that the jalkars were settled validly in its favour, as the society had 190 members as compared to 105 members of the Harauna society (which of course is disputed by the Harauna society). The District Fisheries Officer has also filed his affidavit before the Director and stated that the classification was properly made. Out of the 72 jalkars, 27 are of fine quality, 29 are of medium quality and 16 are of low quality. He has further stated that the appellant society was defaulter and the District Fisheries officer has settled twenty jalkars in its favour subject to the condition that the Harauna society should pay the dues. It has further been stated by the District Fisheries Officer that on non-payment of the dues, the appellant Harauna society was issued a show cause notice before the cancellation order was passed and the ten jalkars were settled by limited bid and five jalkars were settled by open bid. The Director has come to the conclusion that the classification has not been made properly. There was no consensus between the two societies and the matter ought to have been referred to the District Reserve Jama Committee and on the basis of the aforesaid findings the settlement made vide letter no. 52, dated 18.1.2008 and letter no. 745, dated 2.6.2008 has been cancelled. 10 Mrs. M. Chatterjee, learned counsel appearing on behalf of members of Madhopur society who have been settled jalkars by limited bid submits that although the District Fisheries officer has specifically mentioned in his affidavit filed before the Director that the petitioners (members) ought to have been made party as they would be affected by any order passed by the Director, they were not added as party and the order of the Director is bad on the aforesaid ground. It is submitted by Mr. Pashupati Prasad Sinha and Mrs. Chatterjee that the Director’s findings are not based on any documents and no reason whatsoever has been assigned by the Director, Fisheries which would indicate to this court the reasons for coming to the conclusion except the bald statement made by appellant Harauna society. Mrs. Chatterjee also argued that the Harauna society did not in fact deposit the dues within thirty days as directed in the appeals nor did the Harauna society deposit the dues within the specified time as directed in the letter, dated 26.4.2008. In fact even after issuance of the show cause notice, the Harauna society instead of depositing the amount of dues filed a writ petition and thereafter the appeal circumventing the orders passed on 21.4.2008 and 26.4.2008. 11 Mr. Pashupati Prasad Sinha also argued that the petitioners of CWJC Nos. 1403 and 3374 of 2009 were not entitled for settlement under the provisions of the 2006 Act as they were not members of the Madhopur society and as such they could not be settled the jalkars through the limited bid as provided under section 7 (ix) of the 2006 Act. The settlement of jalkars commenced in the year 2007 and till today the matter is being agitated by one or the other society challenging each and every order passed during the said period i.e. from 2007 to 2008. As a result of that no settlement has actually been finalized with respect to seventy two jalkars of Motipur block. The writ petition filed by Haraun society (Harauna) challenging the order passed on 26.4.2008 contained in memo no. 578 by which the District Fisheries Officer settled twenty jalkars in favour of the Harauna society subject to payment of dues which were pending against it, the Harauna Society instead of paying the dues challenged the order in appeal. In fact respondent no. 5, the Harauna society went beyond the leave granted by this court vide order, dated 29.7.2008 and challenged the first order of settlement i.e. 18.1.2008. The order, dated 18.1.2008 was also challenged in Appeal No.10 of 2008 wherein also the Director had ordered that the petitioner should deposit the 12 dues against him within a period of thirty days. Respondent no. 5, Harauna Society at no stage filed a writ petition against the order passed in Appeal No. 10 of 2008 on 21.4.2008. Therefore, this Court finds that the Harauna society had lost the opportunity to challenge the order, dated 21.4.2008 by which he had put a challenge to the order, dated 18.1.2008. This Court also finds that the earlier order of the Director, dated 21.4.2008 passed in Appeal Nos. 10 and 5 of 2008 challenging the order, dated 18.1.2008 does not in fact indicate that the classification of the jalkars was defective or that the procedure followed while making settlement was not in accordance with law and, therefore, apart from stating that the settlement should be made according to the provisions of section 7 (viii) of 2006 Act, no positive direction was given for setting aside the said order. This Court, therefore, finds that the Director by passing the order, dated 5.12.2008 in a manner reviewed the order passed earlier which he could not have done under the 2006 Act. Once the matter had been settled and a positive order had been given in Appeal Nos. 5 and 10 of 2008 to the Harauna society to take settlement and the settlement was in fact made in favour of the Harauna society subject to certain condition, it is not open to the Director or respondent no. 5, the Harauna Society to challenge it in the appeal. This Court, therefore, 13 finds that the order passed by the Director Fisheries in Appeal No. 42 of 2008 setting aside the settlement, dated 18.1.2008 and over ruling the order passed in Appeal Nos. 5 and 10 of 2008 is unwarranted. The next question which is to be decided is whether the Madhopur society is entitled to challenge the order passed by the Director Fisheries in Appeal No. 42 of 2008. Having held that the order of the Director in setting aside the order, dated 18.1.2008 and the order, dated 21.4.2008 is not in accordance with law, I do not think that the Madhopur society would have any grievances left in the writ petition. However, the objection of Madhopur society is that the petitioners of CWJC Nos. 1403 and 3374 of 2009 are not members of their society and, therefore, could not have settled jalkars by limited bid. This objection taken in this writ petition is at a belated stage. Specially so, as neither Harauna society nor Madhopur society thought it fit to raise this issue before the Director or for that matter even make the petitioners party in Appeal no. 42 of 2008 before the Director even though the District Fisheries Officer had specifically pointed out in his counter affidavit that they were necessary party as the jalkars were settled in their favour on account of default of the Harauna society. This objection has perhaps been taken as the Director by the impugned order has directed that the 14 settlement should be made afresh with respect to the 64 jalkars and having realized that they have not made the petitioners party before the Director, the society has raised an issue that they are not members of their society. This Court finds that the Director, Fisheries has not given any cogent reason for holding that the classification was incorrect. Section 14(1) of the Act provides that the objections to the classification should be made within 30 days. No such objection was filed and as such this matter could not be reopened after the settlement process had started. There is also no discussion as to how the Director came to the conclusion that there were procedural defects in the said settlement inasmuch as it was not referred to the Reserve Jama Committee. This aspect has not been seriously challenged before the Director while hearing Appeal Nos. 5 and 10 of 2008 or before this Court and as such this Court does not find any merit in the conclusions drawn by the Director. It is also apparent that the Harauna society was a defaulter at the time of settlement and although a chance was given to the Harauna society to pay the dues, the society did not avail the opportunity. There is a stipulation in the 2006 Act that a society who is a defaulter would not be entitled to settlement and if such settlement has been made in his favour it should be 15 cancelled as per sub section (xiii) (i) of Section 7 of the Act. The opportunity provided to take corrective steps was not utilized by the Harauna society. I may point out that by the impugned order the settlement made in favour of the petitioners of CWJC Nos. 1403 and 3374 of 2009 has not been cancelled, rather the orders of original settlement dated 18.1.2008 and the letter no. 745 dated 2.6.2008 asking the Harauna society to deposit the dues against them within 21 days has been set aside, and an order has been passed to re-classify the jalkars and re-settle them. In my view this order is not sustainable for the reasons mentioned in this order. However, the District Fisheries Officer is directed to settle the jalkars in accordance with the provisions of the Act excluding the jalkars settled to petitioners of CWJC Nos. 1403 and 3374 of 2009. These writ petitions are disposed of with the aforesaid observations and directions. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE AUGUST, 2009 N.A.F.R/Anand/haque