IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 6732 of 2011 1 Uchit Singh, son of late Navy Singh, Budhuchak, P S – Gopalpur, P O – Karari Teentanga, District – Bhagalpur, 813 205 2 Shankar Singh, son of Arjun Singh, Budhuchak, P S – Gopalpur, P O – Karari Teentanga, District – Bhagalpur, 813 205 - Petitioners Versus 1 The State of Bihar through the Chief Secretary, Old Secretariat, Patna 2 The District Cooperative Officer, Bhagalpur 3 The District Fishery Officer –cum- Chief Executive Officer, Bhagalpur 4 The Officer Incharge of P S – Gopalpur, District – Bhagalpur 5 Dilip Singh, “Mantri”, Gopalpur Thana Matsya Jivi Sahayog Samiti Limited, Sadhawa 6 The District Magistrate, Bhagalpur - Respondents ----------- 3 20.06.2011 Heard the parties. With their consent, the writ petition has been heard for final disposal at this stage itself. In 2006, replacing conflicting, confusing, ambiguous executive instructions in relation to settlement of jalkar which is a sairat, the State Government passed the Bihar Fish Jalkar Management Act, 2006 making comprehensive statutory provisions for settlement of all public jalkars in the State. All jalkars, which were hitherto either under the Revenue Department or the Fisheries Department, were all transferred to the Fisheries Department. Thus, the complete control over the settlement of jalkars was made under exclusive control of the said Statute to the exclusion of all other authorities. Different type of jalkar settlements are contemplated with procedures in respect of them. The Act recognises settlement of jalkars to fisherman cooperatives as also to individual. The Act contemplates short time settlement and long term settlement. The obvious distinction apart from the Cooperative Societies period being in the nature of right that is enjoyed by nature of things in a long term settlement, the settlee plans seeding, breeding, cultivating and 2 winning the fish over a long period. Investments are made, the fruits of which are reaped over a period. In short term settlements, ordinarily this is not so. With these good intentions, this Act was passed but the large number of litigations, which this Court is faced, clearly show that the State authorities are yet to reconcile to its practical implementation giving rise to more disputes than are necessary. This case is illustrative of one of the causes. As noted above, it is the Fisheries Department through its officers in different hierarchy, as noted in the Statute, that have to take steps for making settlements. The settlement is effectuated by issuance of parwana, that is the settlement order or the certificate of settlement, giving right to exploit sairat or the jalkar. It is to be given in favour of an individual in his individual right as in contradiction to representative capacity or to a Cooperative Society as a juridical body duly incorporated under the Cooperative Act, may be the Bihar Cooperative Societies Registration Act, 1935 or Self-Supporting Cooperative Act, 1996. At this stage starts the first conflict. When the settlement is made to an individual in his individual capacity, there is no problem but when the settlement is in fact to be made to a cooperative, the authorities of the State are oblivious of the fact that the parwana has to show the settlee as the Cooperative and not any individual, may be the office bearers in any capacity of the Cooperative. Invariably parwanas in respect of Cooperatives are being issued in name of an office bearer or another as if the Cooperative is the personal fiefdom individual. It is not only wrong, it 3 is wrong in fact and in law. The settlee is the Cooperative that is the compendious group forming Cooperative and not any individual office bearer thereof. It is not the personal property right of any individual office bearer. It is the property of the Cooperative. By issuing parwana in the name of an office bearer even though showing him as an office bearer creates all the confusion and unnecessary litigation. The same confusion is then created by the officers of the Cooperative Department by identifying the registered Cooperative by its individual office bearers as if the Cooperative is their property. All this is wrong. Once the Cooperative is duly registered, the office bearer and members may come and go, may be removed, may cease to be members, may be expelled but the status of the settlee as the Cooperative do not change. This, coupled with the provisions of the Statute, referred to above, it is the exclusive domain of the Department of Fisheries to control the jalkars and its exploitation and no other authority except by specific legal authorisation can interfere in the matter may he be the Cooperative Officer, for the role of the District Cooperative Officer or the Department of Cooperative is limited to the cooperative and what happens within it and not beyond that. A reference to Annexure-4, the impugned order would show that the District Cooperative Officer, Bhagalpur has clearly transgressed his jurisdiction in restraining any party from exploiting the jalkar. That was the exclusive jurisdiction of the District Fisheries Officer and he had no business to interfere in that. If a wrong person exploited the parwana beyond the authority then the rightful person can bring action against the wrongful as provided in law. That may be by the Cooperative under the 4 provisions of the Cooperative Act and lay their claims vis-à-vis members inter se but surely extending the power from the Cooperative Act, the Cooperative Officers cannot transgress into the powers for Fisheries Officers under the 2006 Statute and interfere with the settlement or enjoyment of the settlement rights. It is this blatant usurpation of powers by the Cooperative Department that has led to many litigations before this Court. It is time; it is brought to an end. To clarify if there is an inter se dispute between members of a Cooperative on right to manage cooperative, the jurisdiction would be of the Cooperative Officer to decide but while taking that decision, he cannot restrain the cooperative from exploiting the jalkar because the settlement is in favour of a body incorporated and a body which is a compendious body of its members and not a personal property of a Mantri of a Cooperative. The dispute with regard to internal management of Cooperative has to be settled by the Cooperative Officer expeditiously without interfering with the work that the Cooperative has undertaken whoever on behalf of Cooperative works is accountable to the Cooperative as a Trustee for the Cooperative. If the Cooperative or any of its members has suffered loss then it is a matter inter se to be settled by them in accordance with law. When we come to the Fisheries Authorities, they are not concerned with the internal management of the Cooperative. As noted above, the settlement has to be made in favour of an individual in his individual capacity or in favour of a Cooperative as a Cooperative and not to an officer of a Cooperative or Mantri of a Cooperative. If these legal schemes of things are kept in mind, there will 5 be no disputes involving different statutory authorities and exercise of their jurisdiction. If a member of the Cooperative claims that another member of the Cooperative has wrongly usurped powers of the Cooperative, then it cannot but be a dispute inter se between the members of the Cooperative and to be resolved under the Cooperative Act by imposing damages or awarding compensation as against another but certainly, the Cooperative cannot be prevented from functioning. The individual may be accountable to others. Another aspect of the matter which I would like to clarify is that it is a common principle of law well established that when an authority is conferred with a statutory power to do an act then it is presumed and assumed unless contrary is provided, that he has all ancillary and necessary powers to fully effectuate the jurisdiction conferred upon him. These are inherent in the jurisdiction conferred. Those powers are inherent unless they are in conflict with any specific provision either directly or impliedly. Now we come to the facts of the present case. The present writ petition starts with a legal misconception. It states that the two petitioners had taken settlement of two jalkars, namely, Budhuchak and Phulkia Koldhab in the district of Bhagalpur. Why I have said is because that they are only members of Gopalpur Matsayajivi Sahyog Samiti Limited with which the settlement has been made and to which parwana has been issued. It is not they (petitioners) who have got the settlement. The settlements were short time settlements for the period, 2008-2009, 2009-2010 and 2010-2011 but petitioners assert that by virtue of orders 6 dated 27.10.2010 passed by the District Cooperative officer, Bhagalpur, they have been prevented from exercising their right. There are two fallacies in this. Firstly, the settlement being with the Cooperative, the Cooperative has not been stopped and cannot be stopped much less by the District Cooperative Officer as it has already been noted above that interference in the fishery right or the settlement right is beyond the jurisdiction of the District Cooperative Officer and in the exclusive jurisdiction of the District Fisheries Officer but the order is wrong as there appears to be an inter se dispute between the members of the Cooperative which is leading to the orders of the stoppage of fishing right to the Cooperative. If the wrong members of the Cooperative exploits the benefits which is for the Cooperative, the District Cooperative Officer can certainly intervene to compensate the right persons by award of damages upon proper action. He has all the necessary powers under the Cooperative Act to deal with mismanagement and other such issues but certainly he cannot order stopping of fishery right. This action of the District Cooperative Officer is without jurisdiction and has led to unnecessary complications. For some period, the exploitation by either or any of the parties was stopped. Now the situation is as to the relief. Surely, the petitioners are not entitled to any relief whatsoever as they are not the settlees. It is the Cooperative that is the settlee. The Cooperative is entitled to relief. If by virtue of power of the District Cooperative Officer, the exploitation by either party in effect by the Cooperative was stayed, the Cooperative would be at best entitled to a proportionate refund of the settlement 7 money as deposited by it or adjustmentment but the period for settlement cannot be extended. The remedy would be in terms of liquidated claim of refund to be quantified by the District Fisheries Officer which would be an inherent power ancillary to the main jurisdiction and power conferred by the Statute. Thus, the Gopalpur Matasyajivi Sahyog Samiti Limited, if aggrieved, would be free to move the District Fisheries Officer for such relief as they may be advised in accordance with law. With these observations, the writ petition stands disposed of. Let copies of this order be sent to the Secretary, Department of Fisheries and also to the Secretary, Department of Cooperative, Government of Bihar, Patna. M.E.H./ (Navaniti Prasad Singh)