Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1480 (PAT)

Sunil Sahni v. State of Bihar

2013-12-20

RAMESH KUMAR DATTA

body2013
ORAL ORDER : Heard learned counsel for the petitioners and learned counsels for the State and for the private respondent nos. 6 and 7. 2. The petitioners seek quashing of the order dated 9.11.2012, passed by the Registrar, Co-operative Societies, Bihar in Misc. Case No. 232/2012 by which he has stayed the execution of Patta in respect of Chansar Pokhar, Simari, Khesra Nos. 9322 and 594, area 5.63 acres and 8.25 acres executed in favour of the petitioners and directed the Managing Committee to make fresh distribution of Patta within 21 days in the presence of a Cooperative Extension Officer to be deputed by the District Cooperative Officer, Darbhanga under Section 73 of the Bihar Cooperative Societies Rules, 1959. 3. The petitioners are members of the Singhwara Prakhand Matasyajivi Sahyog Samiti Ltd., Bhagwati Asthan, Manikauli within Singhwada Anchal in the district of Darbhanga which is a Fishermen Co-operative Society and they claim to be residing in the area of operation of the said society at Simari Panchayat. The said society had been reorganized by amalgamating all societies of Singhwara Block in terms of the recent amendments made to the Bihar Co-operative Societies Act, 1935. It is further stated that the said society was issued settlement of 27 Fish-cum-Makhana Jalkar under the Bihar Fish Jalkar Management Act, 2006 for a period of seven years, i.e., from 2012-13 to 2018-19. The petitioners, before the said settlement, had filed their application for the settlement of Chansar Pokhar Simari Jalkar before the respondent no.6-society which had sent a proposal list before the District Fisheries Officer-cum- Chief Executive Officer, Darbhanga. Thereafter the Patta for the Jalkar in question was issued in favour of the petitioners for the period from 1.10.2012 to 30.9.2013 on 27.10.2012. The petitioners claim to have deposited the requisite amount on the basis of the said Patta. Thereafter, the respondent no. 7 approached the Registrar, Co-operative Societies claiming illegality and irregularity in the distribution of Patta with respect to the said Jalkar and the Registrar, Co-operative Societies has passed the aforesaid impugned ex parte order dated 9.11.2012. 4. It is submitted by learned counsel for the petitioners that the order of the Registrar, Co-operative Societies is wholly without jurisdiction as the Registrar has not been conferred with any power to act in the matter of settlement of Jalkar under the Bihar Fish Jalkar Management Act. 4. It is submitted by learned counsel for the petitioners that the order of the Registrar, Co-operative Societies is wholly without jurisdiction as the Registrar has not been conferred with any power to act in the matter of settlement of Jalkar under the Bihar Fish Jalkar Management Act. Learned counsel submits that under Section 16 of the Act, there is a bar in respect to dispute concerning settlement of Jalkar for interference by any Civil Court, Co-operative Registrar and Revenue Court. Thus, according to learned counsel for the petitioners, the Registrar could not have interfered in the matter of settlement of the Jalkar with the petitioners. 5. It is also the submission of learned counsel for the petitioners that the Bihar Fish Jalkar Management Act is a complete Code which itself enjoins upon the District Fisheries Officer to ensure before issuing Parwana in favour of the society that the distribution and settlement of Jalkar by the Society to its members have been made in accordance with the principles laid down under Section 10 of the Act. In the said circumstances, it is urged that any one aggrieved in respect of any decision regarding the short term settlement has a right to file an appeal before the Divisional Commissioner or other appellate authority as provided under Section 14 of the Act. Thus, according to learned counsel, there was no occasion for the Registrar, Co-operative Societies to have stepped into the matter and acted under the provisions of the Bihar Co-operative Societies Act. 6. Learned counsel for the respondent no. 7, on the other hand, submits that the bar of jurisdiction of the Registrar, Cooperative Societies under Section 16 of the Act as also the appeal provided under Section 14 of the Act are all in respect to the dispute concerning or decision taken regarding the settlement of Jalkars and they have nothing to do with the matter of distribution of individual Jalkar by the Block Fishermen Co-operative Society to its members. 7. It is submitted that the distribution of Jalkars by the Society to its fishermen members does not come within the purview of settlement of Jalkars and in support of the same learned counsel relies upon the provisions of Section 10 of the Act which talks of distribution of Jalkar by the society to its members. 8. I have considered the submissions of learned counsels for the parties. 8. I have considered the submissions of learned counsels for the parties. This Court is not in agreement with the submission of learned counsel for the respondent no. 7 that the word “settlement of Jalkar is confined only to the settlement of Jalkar which does not include the distribution of the Jalkars by the Block Co-operative Societies with its members rather it is a wide term which includes the distribution of Jalkar by the Society to its members. The said position is quite clear from the provisions of Section 7 (xii) (d) and (e) read with its proviso which are in the following terms:- “7(xii) The settlement shall be made on the following conditions:- ………… ………… ………….. (d) The amount of Reserve deposit fixed for settlement of Jalkars with members by societies shall not be more than 15% of the amount of Government reserve deposit. (e) Within twenty one days of settlement, the society shall make available to the District Fisheries Officer, Parwana issued along with a village-wise and panchayatwise list of amount received for settlement for 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.” 9. It may also be relevant to quote Sections 14 and 16 of the Act which are in the following terms:- “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 Divisional Commissioner. (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 Divisional Commissioner and 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 the period of an appeal. 16. 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 the period of an appeal. 16. Bar of Jurisdiction of Court.– Save in so far as expressly provided in this Act, no any Civil Court, Court of Co-operative Registrar and Revenue Court shall have any jurisdiction in respect of dispute concerning settlement of Jalkars.” 10. It is evident from a consideration of the aforesaid provisions that the Act clearly talks about settlement of Jalkar by the Society with members of societies in sub-clause (d) and again amount received for settlement from its fisherman/fishermen members by the society. Thus, it cannot be said that the mere fact that Section 10 talks of terms of distribution of Jalkar, the settlement by the society to its members clearly referred to in Section 7(xii) (d) and (e) could be overlooked while interpreting the provisions of Sections 14 and 16 of the Act. Once it is held that the settlement of Jalkar as per the provisions of Section 7 aforesaid, comprises also the settlement made by the society to its individual members then the bar of Section 16 clearly applies and the jurisdiction of the Registrar, Co-operative Societies would be ousted in the matter and he cannot interfere in any matter of settlement of Jalkars including by the society to its members. Similarly, in Section 14 the appeal against all decisions regarding short term settlement, would clearly comprise any decision by the society by settling the individual Jalkar with its members as no such settlement can have a finality in view of the proviso to sub-clause (e) of Clause (xii) of Section 7 of the Act which makes it a duty of the District Fisheries Officer to ensure that if a settlement is made in contravention of Section 10 of the Act regarding distribution of Jalkar by the society to its members, then Parwana shall be issued to the society only after due correction of the particular Jalkar as per the provisions of Section 10. 11. 11. Thus, any such settlement of Jalkar by the society to its members is not exclusively in the hands of the society and the very issuance of Parwana to the society is dependent upon compliance of Section 10 which are to be ensured by the District Fisheries Officer and thus the same shall also be comprised within the decision regarding short term settlement and amenable to appellate jurisdiction before the concerned appellate authority under Section 14 of the Act. 12. I am fully in agreement with the submission of learned counsel for the petitioners that the Act is a complete Code and clearly lays down the authorities who are to be involved in the process of settlement of Jalkar, the duty and responsibility as also the appellate forum against such decisions; apart from that it further expressly excludes the jurisdiction of the Registrar, Cooperative Societies in respect to the dispute concerning settlement of Jalkar, as also of any Civil Court or Revenue Court, making it clear that all such matters are to be dealt with under the provisions of the Act. To cap it, the provision of Section 20(ii) further makes it clear that the Act is complete Code as it gives overriding effect to the provision of the Act in the following terms:– “20. Repeal and Savings.– (i) All departmental Rules, orders and circulars issued in relation of settlement of Jalkars before the commencement of this Act are hereby repealed. (ii) Notwithstanding anything contrary in any other law, Act, Ordinance or any rules, regulations, circulars being into force for the time being; this Act shall have overriding effect. Anything done or any action taken before the commencement of this Act as if it were into force for the time being.” 13. The overriding effect given to the Act over any other law or Ordinance or Rules, Regulations, Circulars, etc., being in force for the time being would also include the Bihar Co-operative Societies Act, 1935 as also the Bihar Self Supporting Co-operative Societies Act, 1996 and thus no authority under the said Acts can claim to interfere in the matter of settlement of Jalkar whether to the society or by the society to its members by invoking the provisions, like Section 48 of the Bihar Co-operative Societies Act, as the Registrar appears to have done in the present matter. 14. 14. Thus, in the light of the aforesaid discussions, the writ application is allowed. The impugned order dated 9.11.2012 of the Registrar, Co-operative Societies is quashed and any consequential action taken pursuant to the said order is also quashed.