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2013 DIGILAW 1402 (PAT)

Dwarika Prasad Gupta v. Hanuman Nagar Prakhand Matsyajivi Swablambi Sahakari Samiti Limited

2013-12-06

ASHWANI KUMAR SINGH, R.M.DOSHIT

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ORDER (Per: HONOURABLE THE CHIEF JUSTICE) These two Appeals preferred by the respondents- District Fisheries Officer and the State of Bihar respectively under Clause 10 of the Letters Patent arise from the order dated 23rd August 2011 made by the learned single Judge in MJC No.522 of 2011. 2. It appears that the respondent- Hanuman Nagar Prakhand Matsyajivi Swablambi Sahkari Samiti Limited had approached this Court under Article 226 of the Constitution in CWJC No.4756 of 2010 in respect of a fisheries licence. The learned single Judge by order dated 18th March 2010 directed the respondents to consider the representation made by the petitioner-Society in accordance with law within one month from the date of the receipt of the copy of the order. Pursuant to the said direction, the District Fisheries Officer considered the representation and made order dated 29th September 2010. Feeling aggrieved by the said order, the writ petitioners approached this Court under the Contempt of Courts Act in above referred MJC No.522 of 2011. The said contempt petition has been disposed of by the learned single Judge under the impugned order dated 23rd August 2011. 3. The learned single Judge has considered the claim for refund made by the writ petitioners for the years 2008-09, 2009-10 and 2010-11 and has directed the appellant Dwarika Prasad Gupta to refund the amount within one month. The learned single Judge has also quashed the letter dated 1st November 2010 sent by the District Fisheries Officer to the Director of Fisheries seeking permission to prosecute the petitioners under Section 18(ii) of the Bihar Jalkar Prabandhan Act, 2006. Therefore, these Appeals. 4. Let us first record that in a petition under the Contempt of Courts Act, the learned single Judge has not recorded whether the respondents were guilty of not complying the directions issued by this Court or of deliberately avoiding to comply with the directions of this Court. Instead, the learned single Judge has considered the claim on merits and has issued a mandamus against the respondents. 5. It is indisputable that pursuant to the order dated 18th March 2010 passed in CWJC No.4756 of 2010, the District Fisheries Officer did consider the representation made by the writ petitioners and decided the same by a speaking order on 29th September 2010. 5. It is indisputable that pursuant to the order dated 18th March 2010 passed in CWJC No.4756 of 2010, the District Fisheries Officer did consider the representation made by the writ petitioners and decided the same by a speaking order on 29th September 2010. At the worst, the District Fisheries Officer may not have decided the representation within one month from the date of the receipt of the order of the Court, as directed. For the delay, if any, the Court may hold the respondents guilty of the contempt of the Court and may punish the contemnor. But in no circumstances, in a proceeding under the Contempt of Courts Act, the learned single Judge could have considered the matter on merits and issued mandamus against the respondents. The writ petitioners also, if aggrieved by the order dated 29th September 2010, could have challenged the same in a substantive proceeding. The writ petitioners could not have expected a mandamus to be issued in a contempt proceeding. 6. The course of action taken by the writ petitioners as well as by the learned single Judge is totally erroneous and is unsustainable. 7. For the aforesaid reasons, these Appeals are allowed. Impugned order dated 23rd August 2011 made by the learned single Judge in MJC No.522 of 2011 is set aside. MJC No.522 of 2011 is rejected. 8. We clarify that this order shall not preclude the writ petitioners from challenging the above referred order dated 29th September 2010 in a substantive proceeding, if so advised.