JUDGMENT : S.C. Mohapatra, J. - Settlement of fishery right by a Grama Panchayat in a water area for the year 1988-89 is the short dispute in this writ application under Article 226 of the Constitution by a Co-operative Society of fishermen by tradition. 2. In Balabhadrapur Grama Panchayat within Banki Sub-Division of Cuttack District there are many, water areas including Kaliapata Bandh belonging to the Grama Panchayat. State Government directed on 2-9-1986 ...fishery Sairats Sources of Grama Panchayats should be leased out to Co-operative Societies and accordingly necessary provision has been made under Rule (86)(2) of the Orissa Grama Panchayat Rules. 1968 to lease out fishery Sairats to fishery Co-operative Societies on negotiation basis. At the same time the interest of the Grama Panchayat also cannot be neglected as most of the Grama Panchayats in our State do not have sound financial condition. Markets, ferry ghats and fishery Sairats are their major sources of income. If the fishery Sairats will be given to Co-operative Societies on negotiation basis the G. Ps will be looser. Therefore, Government have been pleased to decide that henceforward all the fishery Sairats of the G. Ps. may be put to public auction annually where Co-operative Societies are free to participate. If the Co-operative Societies are interested may take the Sairats on )ease on payment of 25% less than the highest bid. Where Sairats cannot be put to auction the same may be seated in favour of interested Co-operative Societies on payment of 10% over and above the upset price it they apply to take the Sairat on lease. This is relied upon as Annexure-B/2 by the Block Development Officer (opposite party No. 2) to be the basis of the auction under challenge in this writ application. 3. There are 60 families of traditional fishermen in the Panchayat. They had the right of fishery in this Bandh since long which is reflected in the final report on the re-settlement operation for the year 1917-1920. After vesting of the Estate under the Orissa Estates Abolition Act, there was difficulty in Fishing in the year 1955-56 on account of accumulation of water in the Bandh for which the members filed an application to cut the Bandh which was allowed by the Tahasildar for which villagers gave undertaking to repair the same after draining out the water. After vesting of the Estate under the Orissa Estates Abolition Act, there was difficulty in Fishing in the year 1955-56 on account of accumulation of water in the Bandh for which the members filed an application to cut the Bandh which was allowed by the Tahasildar for which villagers gave undertaking to repair the same after draining out the water. Thereafter, when the State Government transferred the Bandh to the Grama Panchayat in 1958, they were paying nominal salami to the Grama Panchayat annually and were exercising their right of fishery. Number of members of the traditional families of fishermen becoming large, about 400 fishermen by tradition belonging to those 60 families formed the Petitioner Co-operative Society in the year 1977 and were exercising the right of fishery by paying of nominal salami annually. In 1986 a representation was made by the Petitioner to take the bandh on long term lease for ten years to have Pisciculture in that bandh. This was recommended by the Assistant Director at Fisheries. Since the bandh is fill-up by water from the river and is a source of irrigation for cultivation and the fishermen maintain themselves by catching fish Grama Panchayat decided that fishery right in the bandh is to be settled on the Petitioner for one year at a premium of Rs. 500/- and the rate would be revised each year depending upon the market rate of fish, Grama Panchayat decided to inform the authorities accordingly. For the year 1988-89 following the procedure in Rule 87 of the Orissa Grama Panchayat Rules, 1968, Sub-Divisional Officer fixed the upset price at Rs. 636/- for auction of the fishery right in the bandh. Auction was held on 22-3-1988 but no bidder came forward. Therefore, on 5-4-1988, a notice was given that the auction would be held on 19-4-1988. At that stage Petitioner filed an application on or about 11-4-1988 to receive the premium as before and settle the fishery right on it. On 19.4-1988 the fishermen also filed an application before the Block Development Officer to settle the fishery right on the Petitioner as per resolution of the Grama Panchayat by fixing the premium at 10 to 20 per cent above the previous annual premium of Rs. 600/- fixed by the Grama Panchayat as per the resolution. On 19.4-1988 the fishermen also filed an application before the Block Development Officer to settle the fishery right on the Petitioner as per resolution of the Grama Panchayat by fixing the premium at 10 to 20 per cent above the previous annual premium of Rs. 600/- fixed by the Grama Panchayat as per the resolution. Block Development Officer, however, advised the Secretary and the President to take part in the auction and were explained that they would get the concession as per the order of the State Government. They, however declined and insisted not to put the bandh to auction and to settle the same with the Petitioner. Since three persons deposited earnest money the public auction was conducted and opposite party No. 4 being the highest bidder the auction was knocked in his favour. It was referred to the Sub-Divisional Officer who confirmed the bid on 29-4-1988. 4. Opposite Party No. 4 has not entered appearance. Opposite party No. 2 has filed counter affidavit and Petitioner has filed rejoinder to the affidavit. Opposite Party No. 2 has filed an affidavit in reply-to the rejoinder. 5. Mr. A. S. Naidu, learned Counsel for the Petitioner submitted that fishery right of the traditional fishermen from long time past which is the only source of their earning cannot be defeated by vesting of the Estate and thereafter transfer to the Grama Panchayat. Whether the fishermen have any right to fish in the bandh is a pure question of tact to be decided by oral and documentary evidence. Such a question as in the present case is not possible to be decided in this decision since complicated question of fact are involved for which either patty has not produced sufficient materials. Again claim of the individual fishermen is not required to be decided since the Society is the Petitioner and individual rights do not get transferred to a Co-operative Society which is a separate legal entity. See Sudhir Chandra Mandal and Others Vs. State of Orissa and Others. Entire community of fishermen who have the supposed right not being parties adjudication of the question in their absence of this writ application would not be just and fair. See Sudhir Chandra Mandal and Others Vs. State of Orissa and Others. Entire community of fishermen who have the supposed right not being parties adjudication of the question in their absence of this writ application would not be just and fair. Even if the Petitioner or the members make any claim to any interest in the property of the Grama Panchayat exhaustive statutory remedy is provided for the same in Section 147 of the Orissa Grama Panchayats Act, 1964 which reads as follows: 147. Disposal of claims: (1) Save as otherwise expressly provided in this Act where any dispute arises between the Grama Sasan and any person as regards the ownership of or interest in any property vested in or under the management, direction or control of the Grama Sasan the Grama Panchayat shall give such person an opportunity of being heard and decide by order giving reasons therefor to be recorded in writing, whether the ownership of or interest in such property to be treated as that of the Grama Sasan. (2) Any person aggrieved by an order under Sub-section (1) may appeal to the prescribed authority within the time and in the manner as may be prescribed. (3) Any such person dissatisfied with the order in the appeal if any under Sub-section (2) may within six months from the state of such order institute a suit in a Court of competent jurisdiction for establishment of his rights, if any. (4) The order under Sub-section (1) shall, subject to the order under Sub-section (2) or the decision of the Court, if any, as the case may be final. In view of an adequate and equally efficacious remedy in the Statute, the question need not be examined in writ jurisdiction. 6. Next contention of Mr. Naidu that the notice of clear 15 days as provided in Rule 87(i) of the Orissa Grama Panchayats Rules, 1968 auction held by the Block Development Officer on 19-4-1988 is invalid, requires careful consideration. There can be no dispute that there is no clear 15 days between notice- on 5-4-1988 and auction on 19-4-1988. In view of the provision in Section 9 of the Orissa General Clauses Act, 1937, the day the notice was given is to be excluded. Thus, auction was held on the 14th day of the notice. It could not have been questioned if the same would have been held on 21-4-1988. In view of the provision in Section 9 of the Orissa General Clauses Act, 1937, the day the notice was given is to be excluded. Thus, auction was held on the 14th day of the notice. It could not have been questioned if the same would have been held on 21-4-1988. However, Rule 87 has no application to this case since State Government has issued a general order under Rule 86(2). These properties which are covered under Rule 86(2) are excluded from the operation of Rule 87 as provided in Rule 87(a) which provides that after excluding the properties which are to be leased out under Rule 86(2) and other properties as decided by the Sub-Divisional Officer to be managed by the Grama Panchayat, other properties shall be leased out by the public auction in the manner provided in Rule 87. It is true that the State Government while approving the fishery right to be learned out to Co-operative Societies laid a condition that the Society is to take part in the auction whereafter it shall be leased out to the Society at 25% less than the highest bid in the auction. However, such auction is not auction under Rule 87. The manner provided in Rule 87 is not required to be rigidly adhered to. Adequate notice and opportunity to the public and. Co-operative Societies with regard to such auction and fairness in conduct of the auction would be sufficient to meet the requirement of the condition imposed by the State Government under Rule 86(2),Contention of Mr. Naidu, therefore, has no force. 7. Mr. Naidu, thereupon, submitted that in the admitted position that it was not possible to hold the auction on 22-3-1988, there was no scope for re-auction and the fishery right ought to have been leased out for the year 1988-89 in pursuance of the second condition imposed by the State Government in its order under Rule 86(2) since the Petitioner had applied for lease of to the fishery right. There is some force in the contention of Mr. Naidu. Government order under Rule 86(2) does not envisage that the property is to be put to auction for times without number. When the property could not be put to auction in this case on 22-3-1988. There is some force in the contention of Mr. Naidu. Government order under Rule 86(2) does not envisage that the property is to be put to auction for times without number. When the property could not be put to auction in this case on 22-3-1988. and the Petitioner expressed its interest on 11-4-1988 and 19-4-1988, fishery right in the bandh for the year 1988.89 should have been leased out to the Petitioner as envisaged in the order of the State Government. 8. Mr. S.K. Das, learned Counsel for the opposite patties submitted that fishery right for the period 1-7-1988 to 30-6-1989 has already been leased out to opposite party No. 4 and such settlement is operating in absence of any interim prohibition of this Court. Besides, Rule 87 having been complied with substantially, this Court ought not to interfere with the settlement when Petitioner was given opportunity to take part in the auction and was explained that on its taking part the order of Government would be given effect. 9. As has already been discussed. Rule 87 has no application to this case and auction the rounder is not supportable. Again there was no scope for a second auction when the first one could not be conducted. Thirdly. State Government not having fixed the period from 1-7-1988. to 30-6-1989, the period fixed by the Sub-Divisional Officer under Rule 87 has no effect. However, year 1988-89 would be from 1st April, 1988 till 31-3-1989. Once lease has been granted in favour of opposite party No. 4 it would be prejudicial to the Grama Panchayat and opposite party No. 4 for no benefit to the Petitioner if the lease is cancelled. In that view of the matter. I inclined to hold that the lease in favour of opposite party No. 4 shall operate till 31-3-1989. Grama Panchayat shall take steps to put the fishery right to auction for the year 1989-90 (1-4-1989 to, 31-3-1990) unless State Government in the meantime exercises the power under Rule 86 (2) otherwise. In case auction is held sufficiently ahead and Petitioner takes part in the auction, the fishery right shall be leased out to the Petitioner as per the general order of the State Government under Rule 86(2). In case auction is held sufficiently ahead and Petitioner takes part in the auction, the fishery right shall be leased out to the Petitioner as per the general order of the State Government under Rule 86(2). In case auction cannot be held before 1-4-1989, fishery right shall be settled with the Petitioner following the second condition in the general order of the State Government unless the State. Government modifies the general order in the meantime or issues a special order in respect of Kaliapata bandha. 10. In the result, the writ application is allowed in part to the extent indicated above. No costs. Requisites for issue of writ to opposite parties shall be filed within a week, failing which the writ application shall stand dismissed without further reference to Bench. P.C. Misra, J. 11. I agree. 12. Application allowed in part. Final Result : Allowed