IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8471 of 2008 1. RISHIKESH KASHYAP CHAIRMAN OF DARBHANGA MATASYAJIVI SWABLAMBI SAHKARI SAMITI LTD. SHIVAJEE NAGAR, DARBHANGA. 2. DARBHANGA MATASYAJIVI SWABLAMBI SAHKARI SAMITI LTD. SHIVAJEE NAGAR, DARBHANGA THROUGH ITS CHAIRMAN ----- PETITIONERS Versus 1. THE STATE OF BIHAR. 2. THE COLLECTOR, DARBHANGA. 3. THE DISTRICT FISHERIES, BIHAR, PATNA. 4. THE DISTRICT FISHERIES OFFICER CUM CHIEF EXECUTIVE OFFICER, DARBHANGA. ----- RESPONDENTS. For the Petitioner :- Mr. Pashupati Pd. Sinha, Advocate Mr. Deepak Kumar, Advocate For the State :- Mr. Debanjan Choudhary, A.C. to S.C. III For the Intervenor :- Mr. Arun Kumar, Advocate Mr. Anil Kumar Singh, Advocate ----------- 6 7.8.2009 An intervention application has been filed vide I.A. No. 3970 of 2009 which is allowed in view of the facts of this case. A counter affidavit has also been filed by the intervenor which is on record. The writ application has been filed challenging the order passed by the Director, Fisheries dated 16.4.2008. The facts of this case are that the petitioner’s society was settled 100 Jalkars for the year 2005-06. By order of the High Court the settlement made in favour of petitioner’s society was cancelled and it was ordered that the Jalkars should be settled in favour of the intervenor society. It is not disputed that the 2 cancellation of the Jalkar was in December, 2005 and settlement was made in favour of the respondent intervenor society on 19.12.2005. The dispute is whether the petitioner’s society should be allowed to withdraw the amount that he had paid for the period April, 2005 to 31st of March, 2006 or whether the said amount should be realized from the intervenor respondent society? The petitioner being aggrieved with the order of the District Fisheries Officer dated 30.3.2006 and 18.1.2007 which envisages that the petitioner’s society should pay the second and third installment within a period of one week was under challenge before the Director, Fisheries. It may be stated here that the petitioner has deposited the first as well as the second installments and claims that since the Parwana issued in his favour was cancelled he should be returned the said installment amount and also claims that after the order of cancellation, he has not been permitted to reap the benefit of the settlement made in his favour. The Director on hearing the petitioner, the intervenor and the District Fisheries Officer 3 has come to the following conclusions: (a) That the petitioner’s society, settlement was cancelled as per the direction and order of this Court. (b) That Shiv Kumar Sahni, the Chief Executive of the respondent society was settled the said Jalkar for the period 1.4.2005 to 31.3.2006. (c) That the Director has found that although the petitioner’s settlement was cancelled in December, 2005, the Society was not permitted to utilize the benefits by taking out fishes from the Jalkar which was settled in his favour prior to the order of cancellation. The respondent societys’ claim before the Director is that since the settlement is being made in its favour from December, 2005 the society should not be compelled to make payment or asked to deposit the amount of reserve Jama prior to December, 2005. The respondent society claims that the District Fisheries officer has filed an affidavit before the Director, Fisheries stating that the petitioner’s society was in possession of the Jalkars till the order of cancellation. It is submitted on behalf of the respondent that the findings of the Director that the petitioner society was not allowed to fish 4 and utilize the Jalkars, is contrary to the statement made by the District Fisheries Officer. In the present situation where there is a claim and counter claim regarding the fact as to who should deposit the amount with respect to the period April, 2005 to December, 2005 is a question which cannot really be adjudicated by this Court. However, this Court can lay down the principles on which the adjudication can be made by the Fisheries Department or an officer of the Fisheries Department. The Deputy Director, Fisheries, Darbhanga should decide this issue after considering the following facts (A) that the Deputy Director, Fisheries, Darbhanga should keep in view and consider the fact that after settlement made in April, 2005 the petitioner’s society must have put fish fry in the Jalkars and as such invested money in Jalkars. (b) It is also obvious that the fishes could not have matured between April to December i.e. within a period of eight months to be utilized for fishing. (c) Nevertheless it may be that prematurely the petitioner may have taken out fishes and sold them in the market. (d) It is 5 also obvious that the petitioner cannot be made to pay the reserve Jama/installment for the period December onwards. (e) The petitioners should not be compelled to make payment of the reserve jama if they have not reaped the benefit from the Jalkars. I may clarify here that these aspects of the matter should be decided by the Deputy Director, Fisheries, Darbhanga who shall conduct an enquiry so as to find out which of the society if any has utilized the jalkars. He may get the enquiry done through any responsible officer of the State except the District Fisheries Officer and pass an order in accordance with law. The Deputy Director, Fisheries should decide the issue within a period of six weeks from the date of receipt/production of a copy of this order. The order of the Director dated 16.4.2008 passed in Appeal Case No. 18/07 therefore, stands modified with the aforesaid observations. Sanjay (Sheema Ali Khan, J.)