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2007 DIGILAW 964 (PAT)

Anil Kumar Choudhary v. State Of Bihar

2007-05-17

NAVANITI PRASAD SINGH

body2007
Judgment 1. The two writ applications relate to fishery rights of Motihari Block Fishery Swavlambi Co-operative Society Limited. Motihari. In both these writ applications, the petitioner is Chief Executive of the said co-operative. The settlement in favour of the petitioner-co-operative society has been put under suspension for alleged unliquidated dues, there being default in payment of money due to the Department of Fisheries. These writ applications have been heard on several dates and different facets of the arguments have been placed on different dates by different counsels appearing for the petitioner. 2. Counter affidavit, supplementary counter affidavit and rejoinders have been filed. 3. With the consent of the parties these writ applications have been heard together and are being disposed of at the stage of admission itself. 4. The petitioners case is that he had been given settlement of two Jheels known as Moti Jheel and Kararia Jheel and was issued a parwana for the year 2004-05 on 7.12.2004, Annexure 2 to C.W.J.C. No. 3334/2005. In this, it was stated that for the period 2004-05 (1.7.2004 to 30.6.2005) he had to make the entire payment in three equal, instalments dated 31.1.2005, 31.3.2005 and 30.6.2005 and if there is a default then from the very next day, the parwana would be deemed to have been cancelled. The petitioner states that he had made substantial payment in the past but still was surprised to receive the impugned annexure dated 31.1.2005. Annexure 5 to C.W.J.C. No. 3334/05, stating that he had not deposited the first instalment and as such his fishing right is being suspended. This annexure is under challenge. In the writ application it is stated that there was an earlier correspondence (Annexure 3) in between State officials whereby he was supposed to have undertaken to pay certain dues of the earlier settlee as a condition for being granted the settlement in the present. Petitioners assertion is that though it was a communication within the department, it was never made a condition of the parwana, Annexure 2. Accordingly, it is submitted that if payments, as made, are taken into account then the petitioner is not in default. 5. On the other hand, State has filed counter affidavits in both the writ applications. At one stage there was variance in pleadings. Accounts were not properly being explained by either party. Accordingly, it is submitted that if payments, as made, are taken into account then the petitioner is not in default. 5. On the other hand, State has filed counter affidavits in both the writ applications. At one stage there was variance in pleadings. Accounts were not properly being explained by either party. This court accordingly directed that full accounts be furnished in a proper manner, so that the true position with regard to payment and receipt would be clear. 6. A counter affidavit was filed annexring chart with regard to liability, payment etc. 7. The stand of the State is that the two fisheries had earlier been settled but the settlee did not pay various charges and as such fresh settlement has to be made. When this was under consideration, the State Government decided that any settlement, i.e. to be made in future, would be with a condition of recovery of arrear of settlement of the earlier period. This condition was communicated to the petitioner- co-operative society by letter addressed to its Minister. This is Annexure-E/1 to the first writ application. The minister of the co-operative accepted the condition and undertook on behalf of the co-operative to pay the dues and requested for issuance of parwana. It is, thereafter, the parwana was issued. It is, thus, submitted on behalf of the State that the petitioner having represented that he was agreeable to pay the arrear, got the settlement and now having got the settlement he cannot be permitted to challenge his undertaking to pay the arrears as not being his liability. It is submitted that if the petitioner had not undertaken to pay the arrear then the matter would have been sent for open auction or would be settled by public notice with another who could have participated. Apparently, the petitioner-society in anxiety to rule out competition and take the settlement, agreed to pay the dues. It not only avoided the competition but took the settlement as well. In such a situation he would be bound to pay all the dues as undertaken being arrear of settlement as well as due under parwana and if there being a default then the settlement could be cancelled. 8. It not only avoided the competition but took the settlement as well. In such a situation he would be bound to pay all the dues as undertaken being arrear of settlement as well as due under parwana and if there being a default then the settlement could be cancelled. 8. Having heard the parties, it is true that holding out that the minister has the requisite authority to act on behalf of the co-operative, he had undertaken to pay the earlier dues of the earlier settlement made to some other. It was on consideration there of that ultimately parwana was issued. In my view there are two different transactions. One agreeing to pay the arrear and the second, taking settlement for the future but the two are also dependent as agreeing to one led to other. In that manner, it can be said that they are stages of the same transaction. It is well settled that a party cannot aprobate and reprobate at the same time. In other words, a party cannot accept one part of the transaction while rejecting the other part of the transaction. The party must accept the entire transaction or reject the entire transaction. 9. If the plea of the petitioner is accepted that the said minister had no authority, then the authority would have all rejected the parwana because parwana was issued only after this letter was given by the minister. In other words, the petitioner must accept both, the letter of the minister and the parwana, or reject the both. In either event the consequence is the same If they accepted both then they are admittedly defaulter in payment of almost of about Rs. 23 lakh and if they rejected both then they have no right to hold the settlement. 10. Coming to the payment chart, as filed by the State, Mr. Yogesh Chandra Verma, learned senior counsel appearing on some dates accepted the chart as correct. The correctness of entries were not challenged. A reference to that chart would show that in respect of settlement for the period 2004-05 the first instalment was due on 31.1.2005 and the second instalment was due on 31.3.2005. The chart would show that admittedly by 33.1.2005 not a single paisa for that period was paid. 11. The correctness of entries were not challenged. A reference to that chart would show that in respect of settlement for the period 2004-05 the first instalment was due on 31.1.2005 and the second instalment was due on 31.3.2005. The chart would show that admittedly by 33.1.2005 not a single paisa for that period was paid. 11. So far as the second instalment is concerned, first itself not being paid in full, the question of second instalment does not arise Admittedly, without taking into account any other payment the petitioner was defaulter in respect of payment due under the parwana for the period 2004-05 itself is concerned. 12. Without going into the question of arrear being saddled on the petitioner, they were in dues for this period itself. That justifies that action ought to have been taken as one of the conditions in parwana was that if there is a single default, from the next date, the parwana would be deemed to have been cancelled. 13. Being faced with these situations on several dates this case was adjourned on the prayer of the petitioner to see if he could liquidate the dues. Regretably, instead of making any effort in this regard the stand now is being taken that he was not liable to pay the due of earlier settlee at all and if that be so then they had to pay all dues. This stand is not acceptable to the court, as indicated above. 14. In that view of the matter I have no option but to hold that the petitioner- society was a defaulter and it cannot be said that that the impugned action to suspend the settlement in both the cases was in any manner illegal or arbitrary. The action of the respondents has not been able to have been successfully impugned in these writ petitions. Both of them are dismissed accordingly.