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2013 DIGILAW 1170 (PAT)

Kunal Nishad v. State of Bihar

2013-09-24

RAMESH KUMAR DATTA

body2013
ORDER Heard learned counsel for the petitioners and learned counsels for the State, for respondent No.6 and respondent Nos. 5, 8 & 9. 2. The petitioners seek a direction on the respondents not to interfere with the possession of Kakedah Jalkar-cum-Makhana Mahal as well as for quashing the impugned order dated 6.2.2013 passed by the Divisional Commissioner, Purnia in Misc. Appeal No. 287 of 2012 by which the settlement of the said Jalkar in favour of the petitioners has been cancelled. 3. Briefly stated the fact that the petitioners are members of Pranpur Matsyajivi Sahyog Samiti Ltd. which is the amalgamated Co-operative Society for Pranpur Block in the district of Katihar. The petitioner No.1 is the group leader of the other petitioners and together they applied on 8.8.2012 before the Secretary of the said Society for settlement of Kakedah Jalkar-cum-Makhana Mahal for the period of 2012-13 in their favour. The said Kakedah Jalkar-cum-Makhana Mahal is one of the 35 fisheries-cum-Makhana Mahal and 41 fishery Jalkar within Pranpur Block. The amalgamated Co-operative Society held a general meeting on 8.8.2012 in which it is claimed that notices were sent to all the members of the Society. It is the stand of the petitioners that the authorities of the said Society accepted the application of the petitioners for settlement of the said Jalkar for an amount of Rs.1,03,500/- for which the petitioners deposited Rs.57,000/- on 29.9.2012 as 50% of the amount in token of deposit of reserve jama for which receipts were issued. The Secretary of the Society also issued the settlement paper with respect to the said Jalkar on 29.9.2012. It is further claimed by the petitioners that they have taken possession of 97.75 acres area of Kakedah Jalkar-cum-Makhana Mahal and engaged 100 labourers for clearance of Jalkar and also planted the plants of Makhana and poured Jira (small fishes) in the said Jalkar and thereby the petitioners have incurred a huge expenditure over the same as also over pesticides and insecticides. 4. The stand of respondent No.6 and other supporting private respondents, on the other hand, is that by order dated 14.9.2012 of the District Fishery Officer-cum-Chief Executive Officer, Katihar made a short-term settlement of 35 Jalkar-cum-Makhana Mahals for the annual reserve price of Rs.4,39,350/- for the period of 7 years from 1.10.2012 to 30.9.2019 with the aforesaid Society. 4. The stand of respondent No.6 and other supporting private respondents, on the other hand, is that by order dated 14.9.2012 of the District Fishery Officer-cum-Chief Executive Officer, Katihar made a short-term settlement of 35 Jalkar-cum-Makhana Mahals for the annual reserve price of Rs.4,39,350/- for the period of 7 years from 1.10.2012 to 30.9.2019 with the aforesaid Society. It is stated that much prior to the said settlement the respondent No.6 had applied for settlement of Kakedah Jalkar thrice including lastly on 8.8.2012 when the said respondent and 33 other members expressed their willingness for settlement of Kakedah Jalkar by handing over their applications to the Secretary of the Society but the Secretary who is father of petitioner No.1 refused to give any receipt for the same, upon which the application was filed before the Member of the Executive Committee who had given the receipt. It is also their stand that as a matter of fact no decision was taken on 8.8.2012 by the Managing Committee regarding distribution of the Jalkars among the members as the members only put their signatures and filed their applications. It is the further stand that the Secretary of the Society, Ghanshyam Singh, has been ensuring that the Kakedah Jalkar which is having an area of 97.75 acres and big enough to accommodate at least 100 members of the society has continued to be settled for the last 20 years with the members of his family. Apprehending foul play during this settlement also respondent No.6 filed a petition before the Collector on 9.8.2012 stating the facts and requesting him to make an enquiry in the matter through the District Fishery Officer so that the Kakedah Jalkar may be settled with them. The respondent filed a petition in this regard before the concerned Minister also, sending copies of the same to the District Fishery Officer and Assistant Registrar, Co-operative Society, Katihar for settlement of the Jalkar in accordance with law. It is stated that respondent No.6 and others approached various authorities in the matter but ultimately upon finding that the father of petitioner No.1 was hell bent upon distribution of Jalkars to his son and other members of his family they approached the Divisional Commissioner by filing an appeal on 11.12.2012. The petitioners were issued notices and they appeared but did not file their written statement. The petitioners were issued notices and they appeared but did not file their written statement. Ultimately the Commissioner by the impugned order dated 31.1.2013/6.2.2013 came to the conclusion that the Secretary in making the settlement with his son did not take into account conflict of interest involved and he should have recused himself from the settlement. He also found various irregularities in the distribution of Jalkars by not following the procedure to make proportionate distribution of the Jalkars in violation of provisions of Section 10 of Bihar Fish Jalkar Management Act, 2006 for the purpose of subserving the private interest. He therefore came to the conclusion that the settlement was contrary to law and principles of natural justice. Accordingly he set aside the settlement of Kakedah Jalkar and another Roshna Kundi Jalkar and directed the District Fishery Officer-cum-Chief Executive Officer, Katihar to make proportionate distribution of the said Jalkars between the appellant before him and other members so that the interest of fishermen members could be protected. Pursuant to the same the District Fishery Officer-cum-Chief Executive Officer, Katihar by his order dated 26.2.2012 restrained the petitioners from making any investment or taking out anything from the said Jalkars. Aggrieved by the same the petitioners have approached this Court. 5. Learned counsel for the petitioners submits that the appeal having been filed before the Commissioner on 11.12.2012 was barred by limitation as under Section 14 of the Bihar Fish Jalkar Management Act an appeal has to be filed within 30 days of the passing of an order, whereas the settlement order had been passed on 14.9.2012 by the District Fishery Officer. Hence, according to learned counsel, the order of the Commissioner is without jurisdiction. In this regard learned counsel for the petitioners submits that the Commissioner could not have extended the period of limitation provided under the Act which is a special and local Act and the Commissioner not being a court has no authority to extend the period of limitation prescribed therein. In support of the same learned counsel relies upon a decision of a Division Bench of this Court in the case of M/s. Jaimangal Ltd., Avantee Hotel and another Vs. State of Bihar and others : 1989 BLJ 627 , in paragraph 14 of which it has been held as follows :– “14. In support of the same learned counsel relies upon a decision of a Division Bench of this Court in the case of M/s. Jaimangal Ltd., Avantee Hotel and another Vs. State of Bihar and others : 1989 BLJ 627 , in paragraph 14 of which it has been held as follows :– “14. In view of the authoritative pronouncement of law by the Supreme Court in Sakuru v. Tanaji, (1985) 3 SCC 590 , it must be held that the provisions of Section 4 to 24 of the Limitation Act 1963 apply only to a case where the special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed by the schedule of the Limitation Act for preferring such a suit, appeal or application before a court exercising civil or criminal jurisdiction. Where the special or local law prescribes the period of limitation for any suit, appeal or application different from the period prescribed under the Limitation Act, the provisions contained in Section 4 to 24 shall not apply unless such suit, appeal or application is to be presented before a court. Under the Act, the appeal is to be preferred before the State Government or the Advisory Board, if constituted. Neither the State Government nor the Advisory Board can be said to be a court. Neither the Act nor the rules make the provisions of the Limitation Act applicable nor do they vest power in the appellate authority to condone the delay in preferring an appeal. Hence, the appellate authority has no power or jurisdiction to condone the delay in filing an appeal before it. The order of the Advisory Board, the appellate authority dated 19-9-1987 (Annexure-1) condoning the delay is therefore without jurisdiction and is hereby quashed.” 6. It is further submitted by learned counsel that only petitioner No.1 was impleaded as party in the appeal but the other interested persons were not and, therefore, the order of the Commissioner is in violation of the principles of natural justice and is fit to be dismissed on the said count. 7. It is further submitted by learned counsel that only petitioner No.1 was impleaded as party in the appeal but the other interested persons were not and, therefore, the order of the Commissioner is in violation of the principles of natural justice and is fit to be dismissed on the said count. 7. It is further submitted by learned counsel that respondent No.6 was not a member of the Pranpur Prakhand Sahkari Samiti which had merged in the Pranpur Prakhand Matshyajivi Sahyog Samiti Ltd. by operation of law and thus he cannot be considered as a member of the present Society and his name has been fraudulently introduced as a member. Thus, he has neither any locus standi to file an appeal before the Commissioner nor his appeal could have been considered in view of the fraud played upon him which vitiates everything. In support of the same learned counsel relies upon a decision of the Apex Court in the case of S.P.Chengalvaraya Naidu Vs. Jagannath and others : (1994) 1 SCC 1 , in paragraph-5 of which it has been held as follows :– “5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” 8. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” 8. Learned counsel for respondent No.6, on the other hand, submits that fraud and illegality as a matter of fact pervade the action of the petitioner No.1 and his father who is the Secretary of the Society and instrumental in ensuring that the settlement of the largest Jalkar of the Block having an admitted area of 97.75 acres was made in favour of his son, the petitioner No.1 and eight of his henchmen, whereas the said Jalkar was big enough to accommodate more than 100 fishermen members of the Society. Apart from the same it is submitted that the manner in which the settlement has been made clearly goes to show the illegal exercise of power by the Secretary of the Society in favour of his family members and in such circumstances this Court should not interfere with the order of the Divisional Commissioner as setting aside such order would lead to perpetuation of illegality by the Secretary of the Society. 9. It is further submitted by learned counsel for respondent No.6 that there has been no delay on the part of the respondents in approaching the Divisional Commissioner as respondent No.6 had no grievance so far as the settlement dated 14.9.2012 in favour of the Society is concerned. The petitioners’ grievance only relates to the internal action of the Secretary of the Society in ensuring that the settlement of the largest Jalkar is made in favour of his son for which the petitioners had been repeatedly approaching the respondents and as a matter of fact the District Fishery Officer had also forwarded the application of respondent No.6 and other applicants for the benefit of getting settlement of the Kakedah Jalkar, apart from two earlier applications made by the respondents on 30.7.2012 and 3.8.2012 which were completely ignored. 10. 10. It is also contended by learned counsel for respondent No.6 that under Section 10 of the Act the distribution of Jalkars has to be made in a fair and equitable manner and before issuing the parwana the District Fishery Officer is required under Section 7 of the Act to ensure that if the settlement made by the Society to its members is in contravention of Section 10 of the Act then the same is issued only after due correction of the settlement of that particular Jalkar is made in terms of Section 10. 11. It is also urged by learned counsel for respondent No.6 that no such issue of respondent No.6 not being a proper member of the earlier Samiti was raised by the petitioners before the Commissioner and they cannot be permitted to raise such issue before this Court. 12. It is also submitted that the petitioner No.1 being group leader in terms of the provisions of the Act itself hence the impleadment of the group leader was sufficient in the appeal and non-impleadment of the other members of the group would not amount to violation of the principles of natural justice. 13. I have considered the rival submissions of learned counsels for the parties. Section 14 of the Bihar Fish Jalkar Management Act, 2006 is in the following terms :– “S. 14. Appeal and Revision:–(i) An appeal against all decisions regarding short term settlement taken by District Fisheries Officer and Deputy Director may be filed before the Director Fisheries. (ii) An appeal against of all decisions taken by Collector and Director Fisheries may be filed in the Court of Departmental Commissioner. (iii) An appeal against all decisions regarding short term settlement taken by the Government may be filed in the court of Member, Board of Revenue. (iv) Appeal may be filed within thirty days from the date of the original order. The appeal shall be disposed of within two months essentially after giving an opportunity of hearing to the parties concerned under the process fixed by the Government. In the disposal of appeal, no interim order/stay order shall be passed. No investment shall be made in the disputed Jalkars by any party in any period on an appeal.” 14. The appeal shall be disposed of within two months essentially after giving an opportunity of hearing to the parties concerned under the process fixed by the Government. In the disposal of appeal, no interim order/stay order shall be passed. No investment shall be made in the disputed Jalkars by any party in any period on an appeal.” 14. It is evident from the aforesaid provisions that an appeal may be filed within thirty days from the date of the original order and has to be disposed of within two months after giving an opportunity of hearing to the parties concerned. It is further provided therein that no interim order/stay order shall be passed in the said appeal and no investment shall be made in the disputed Jalkars by any party in any period on an appeal. 15. Section 7 of the Act deals with short term settlement. Section 7(iii) and 7(xii) (e) & (f) are also relevant which are in the following terms :– “S. 7(iii)- It will be compulsory for the Fishermen Co-operative Societies to enclose following documents with their application to the District Fisheries Officer for settlement of Jalkars:- (a) A proof relating to the payment of current year audit fee and Audit report of the previous two years, issued by the co-operative department; (b) A certificate of last election and a proof regarding area of operation of the society; (c) A proceeding of Annual General Meeting of the preceding year in which there should be a clear description of settlement made with members of the society; (d) With the approval of the Managing Committee of the society, a village wise and Panchayat wise list of Jalkars along with the names of the applicant fishermen member/members with whom the settlement is proposed. If the settlement of any Jalkar is proposed with more than one member, then the name of the group leader.” “S.7(xii)(e)- Within twenty one days of settlement, the society shall make available to the District Fisheries Officer, Parwana issued along with a villagewise and panchayatwise list of amount received for settlement from its fisherman/fishermen members, issuance of a provisional Parwana shall be prohibited: Provided that if the settlement is in contravention of the provisions of Section 10 of this Act, the parwana shall be issued only after due correction of that settlement of that particular Jalkar as per provision of Section 10. (f) It will be the responsibility of the District Fisheries Officer to enter into a registered agreement with the society within two weeks of issuing Parwana: Provided that after lapse of the said period, order for executing agreement may be given by Collector after obtaining explanation. In a situation where agreement is not executed in the extended period, settlement may be cancelled by District Fisheries Officer after the approval of Collector and after asking show cause from the society. Expenses incurred on registration shall be borne by society.” Section 10 of the Act is also quoted below : “S.10.- Distribution of Jalkars:–(i) Before submitting an application for settlement of Jalkars, the society shall enlist all the applications of its members willing to take settlement of Jalkars. The name of Jalkars, members along with their villages and panchayats should be mentioned in the applications received. (ii) After consideration of the enlisted applications by the Managing Committee of the Society, a list of proposed distribution of Jalkars among its members shall be prepared considering the following points:– (a) Generally distribution of Jalkar will be proposed among members of the village in which the Jalkar is situated. If members in desired number are not available in that village then the distribution of Jalkar may be proposed with the members of nearest village or other villages of the Panchayat. Even after this, member in desired number are not available then distribution of Jalkars may be proposed among members of the neighbouring Panchyats; (b) As far as possible, the distribution of Jalkars shall be made to a group of members. Chairman/Secretary of the society will select a group leader after calling a meeting of members of the group and information will be given to all members of their rights and share; (c) While preparing a proposal for distribution of Jalkar with a group the number of members shall be fixed keeping in mind the reserve deposit and water area of Jalkars.” 16. It is evident from a consideration of the aforesaid provisions that for taking in short term settlement in the present matter the Fishermen Co-operative Society has to enclose along with its application to the District Fisheries Officer for the settlement of Jalkars the proceeding of Annual General Meeting of the preceding year in which there should be a clear description of settlement made with members by the society and also with the approval of the Managing Committee of the society, a village wise and Panchayat wise list of Jalkars along with the names of the applicant fishermen member/members with whom the settlement is proposed and if the settlement of any Jalkar is proposed with more than one member, then the name of the group leader. 17. Section 10 of the Act lays down the procedure for distribution of Jalkars by the society to its members. The Managing Committee of the society is required to enlist all the applications of all its members willing to take settlement of Jalkars as also the name of the Jalkars proposed to be distributed among its members and their villages and Panchayats are required to be mentioned and after the same is enlisted a list of proposed distribution of Jalkars has to be prepared considering that generally distribution of Jalkar will be among the members of the village in which the Jalkar is situated and if the members in desired number are not available in that village then it should be proposed with the members of nearest village or other villages of the Panchayat and only thereafter if the desired number of members are not available then distribution of Jalkars may be proposed among members of the neighbouring Panchayats. It is also provided that the distribution should be made as far as possible to a group of members and the Chairman/Secretary of the society is required to select a group leader after calling a meeting of members of the group. It is also provided that distribution of Jalkar with a group of members shall be fixed taking into consideration the reserve deposit and water area of Jalkars. 18. It is also provided that distribution of Jalkar with a group of members shall be fixed taking into consideration the reserve deposit and water area of Jalkars. 18. From a perusal of the provisions of Section 7(xii)(e) of the Act it is evident that the District Fisheries Officer is to ensure that the settlement is not made to its members by the society in contravention of the provisions of Section 10 of the Act and the Parwana shall be issued only after due correction of the settlement of a particular Jalkar as per the provisions of Section 10. Only thereafter a registered agreement has to be entered with the society within the time frame. 19. In the present matter it is admitted by learned counsels for the parties that the Parwana has been issued to the society on 28.12.2012. Keeping the aforesaid provisions in view, I do not find any force in the submission of learned counsel for the petitioners that the application of respondent No.6 before the Commissioner is barred by limitation since the settlement had been made with the society by order dated 14.9.2012 of the District Fisheries Officer. The petitioners not being aggrieved with the settlement made with the society but only with regard to the nefarious activities of the father of the petitioner No.1, the Secretary of the society and having made a hue and cry over the matter before different authorities right from 9.8.2012 itself it cannot be said that they made any undue delay in approaching the Commissioner in the matter ultimately on 11.12.2012 having failed to receive any response from the other authorities. The petitioners could have filed an appeal in the present matter any time within 30 days of the final issuance of Parwana by the society by the District Fisheries Officer on 21.12.2012 as their grievance with regard to the internal distribution of the Parwana by the society stood crystallised by issuance of Parwana by the District Fisheries Officer on 21.12.2012 and not before. Hence the petitioners approaching the Commissioner on 11.12.2012 can by no stretch of imagination be considered as beyond the period of limitation. 20. Hence the petitioners approaching the Commissioner on 11.12.2012 can by no stretch of imagination be considered as beyond the period of limitation. 20. So far as the stand of the petitioners regarding petitioner No.1 being only impleaded as a party to the appeal it is evident from the provisions of Section 7(iii) (d) of the Act that even in the list of Jalkars with whom the settlement is proposed to be submitted along with the application, if the settlement of any Jalkar is proposed with more than one member then the name of the group leader is to be mentioned and under Section 10 of the Act also a group leader is to be selected. In the given circumstances of the case where the Secretary of the society has made settlement of the largest Jalkar having an area of 97.75 acres in favour of his son which had been ensured for the last 20 years for his family members it may not have been possible for the respondents to have got the name of all the members when they approached the Commissioner. In any case, since the group leader is recognized by the provisions of the Act itself hence impleadment of the group leader has to be taken as sufficient to represent the group before the Commissioner and no violation of the principles of natural justice is caused if the other members of the group are not directly impleaded. 21. So far as the question of respondent No.6 not being a member of the earlier society which was merged in the present society is concerned, the said issue ought to have been raised at the outset before the Commissioner or before any other appropriate authority under the Bihar Co-operative Societies Act and such issue cannot be decided belatedly at this stage before this Court in its writ jurisdiction. 22. I am also of the view that the Commissioner has not violated the principles of natural justice so far as the petitioners are concerned. 23. 22. I am also of the view that the Commissioner has not violated the principles of natural justice so far as the petitioners are concerned. 23. As a matter of fact, considering the pleadings of the parties and the manner in which the Secretary of the society has managed to ensure the settlement of a huge Jalkar in favour of his son along with a few other members who are stated to be his henchmen, would have been sufficient for this Court to interfere in view of the statutory provisions of the Act which have been violated by the petitioner through his father who is the Secretary of the society with impunity and they cannot be permitted to take the benefit of any technicality before this Court. 24. Thus, in the light of the aforesaid discussions I do not find any merit in the writ application. It is, accordingly, dismissed.