IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13394 of 2010 1. MADHEPUR ANCHAL FISHERMEN CO-OPERATIVE SOCIETY LTD. MADHEPUR THROUGH ITS SECRETARY MAHENDRA SAHNI, SON OF LATE RAM PRASAD SAHNI. 2. MAHENDRA SAHNI, SON OF LATE RAM PRASAD SAHNI BOTH RESIDENTS OF VILLAGE PACHANI, P.S. MADHEPUR, DISTRICT MADHUBANI. ------------------------------------------------ PETITIONERS Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPLE SECRETARY, ANIMAL HUSBANDARY AND FISHERIES DEPARTMENT, BIHAR, PATNA. 2. THE DIRECTOR FISHERIES, BIHAR, PATNA. 3. THE DEPUTY DIRECTOR FISHERIES, DARBHANGA DIVISION, DARBHANGA. 4. THE DISTRICT FISHERIES OFFICER-CUM-CHIEF EXECUTIVE OFFICER, MADHUBANI. ------------------------------------------------ RESPONDENTS ********* 6 22.11.2010 The petitioners’ Society namely Madhepur Anchal Fishermen Co-operative Society Limited, Madhepur has filed this writ application through its Secretary claiming adjustment of the settlement amount with respect to 22 Makhana Jalkars settled in their favour for the years 2005-06, 2006- 07 and 2007-08. It has been said thatthey had deposited the entire settlement amount for three years. The District Fisheries Officer admittedly did not issue a Parwana for the year 2006-07 and the year 2007-08. It is, therefore, claimed that the petitioners could not do business because of 2 the fact that no Parwana was issued in the Society’s favour. On perusal of the pleadings in the writ application and the annexures of the writ application, it would be apparent that the Society vide Annexure-2, on 10.1.2008 made a claim that after the settlement of the 22 Makhana Jalkars in favour of the Society, they were not issued Parwanas for the year 2006-07 and 2007-08. It is further claimed that 5 Jalkars mentioned at Annexure-2 were utilized under the NAREGA scheme and the petitioners suffered loss due to utilization of these 5 Jalkars by the Fisheries Department and the Circle Officer, Madhepur. It has been submitted that the Society should be refunded the amount on account of resettlement of these 5 Jalkars by the District Fisheries Officer and the Anchaladhikari, Madhepur. On the representation of the petitioners, the District Fisheries Officer on 8.5.2009 vide Annexure-5 made a demand of the remaining amount to be paid by the petitioners. The petitioners again represented against the order passed by the 3 District Fisheries Officer vide Annexure-5 by stating that they had filed a writ application numbered as 8167 of 2008 claiming refund of Rs. 1,86,410/-. A prayer was also made that settlement ought to be made for the year 2008-09 in favour of the Society with respect to Makhana and Fish Jalkars in the Anchal. The Society also stated that they were ready to deposit the amount subject to the order of this Court. During the pendency of CWJC NO. 8167 of 2008, the District Fisheries Officer sought to settle the Jalkars by open bid. The petitioners challenged the order vide CWJC No. 7689 of 2009. The order of settlement as submitted by the counsel for the petitioners was stayed during the pendency of the aforesaid writ application. The two writ applications were disposed of by a common order on 21.1.2010 in which the District Fisheries Officer was directed to consider the representation of the petitioners and pass an appropriate order with respect to the prayer of the petitioners for adjustment of the settlement amount. Accordingly, the District Fisheries 4 Officer passed the order as contained in Annexure-16 dated 5.7.2010 which is under challenge. On perusal of the order, the pleadings and the submissions made by the petitioners, it is apparent that after the settlement made for the year 2005 in favour of the petitioners’ Society, the petitioners carried on the business of reaping the harvest of the Jalkars settled in their favour. The petitioners’ Society continued to do so for the year 2006-07 although no Parwana was issued for the year 2006-07. No protest or an issue was raised by the petitioners’ Society for the year 2006-07. It may be noted that the season for settlement of Makhana Jalkars commences in the month of July, after about six months of the settlement year 2007-08 the petitioners filed representation as contained in Annexure-2. As stated above, the representation was with respect to utilization of 5 Jalkars under the NAREGA scheme. In any event, it is apparent that even though the Parwana was not issued to the petitioners for the years 2006-07 and 5 2007-08, the petitioners continued to be in possession of the Jalkars in question for the year 2005-06 which spilled over for the years 2006-07 and 2007-08. The Fisheries Department, specifically the District Fisheries Officer, or any one else, or any other party, did not interfere with the possession of the petitioners. It is also apparent that the petitioners were treated to be the Society which had been settled the Jalkars which is apparent from the fact that a demand was made from them for payment of the remaining amount. The petitioners are now making a somewhat ambitious demand that they should be refunded/adjusted the entire amount deposited by them for the years, for which a Parwana was not issued. In my opinion there can be no justification for making such a prayer, when undisputedly the petitioners’ Society was the only Society in the area (Anchal) in whose favour the settlement was made for a period of 3 years. The settlement has not been cancelled, non- issuance of Parwana, without there being any order adverse to the Society’s interest, can not deprive them of their possession. The 6 facts remains that after utilizing the Jalkars, the petitioners’ Society wants the adjustment of the settlement amount. The only fact which has not been considered by the District Fisheries Officer is the claim of the petitioners’ Society that 5 Jalkars were settled by the Circle Officer and utilized by the authorities of the State under NAREGA scheme. It is quite justified for the petitioners to claim that this aspect ought to be determined by the District Fisheries Officer and he ought to have considered the fact that the petitioners’ Society had invested in the 5 Jalkars in question for the period for which the Jalkars were utilized under the NAREGA scheme and adjustment ought to have been made by the District Fisheries Officer for 5 Jalkars which are mentioned in Annexure-2. In the facts of this case, the submission of the petitioners that they could not carry out business for the year 2006-07 or for the year 2007-08 in absence of a Parwana can not be accepted by this Court, for the obvious reason that the petitioners’ Society was in fact settled the 7 Jalkars for the three years in question and, therefore, there was no impediment by the Fisheries Department depriving the Society in conducting the business of rearing fishes and growing Makhana in the Jalkars settled in their favour. The District Fisheries Officer is directed to ascertain whether the 5 Jalkars mentioned in Annexure-2 were used under the NAREGA scheme, the period for which they were used under the scheme and thereafter adjust the proportionate amount of the revenue (settlement) for 5 Jalkars within a period of eight weeks on receipt of this order. This writ application is, thus, allowed to the extent aforesaid. Sanjay/A.F.R. ( Sheema Ali Khan, J.)