Bihar Regional Fish Producers Self Help Group Mahua Tola v. State Of Bihar
2020-11-09
RAJEEV RANJAN PRASAD
body2020
DigiLaw.ai
JUDGMENT Rajeev Ranjan Prasad, J. - This writ application has been preferred seeking the following reliefs: (i) For issuance of writ in the nature of certiorari for quashing the impugned order dated 09.05.2020 (Annexure 6.) passed by the Respondent No. 3 to not extend the settlement of Hauz Babbar Hatchery, Bihar Sharif the petitioner has been directed to handover the Fish Farm to the Respondent No. 4. (ii) For issuance of Writ in the nature of mandamus directing he respondents to consider a case of the petitioner for extension of the settlement of the Fish Seed Farm for another 10 years in accordance with the terms of agreement. (iii) For any other consequential relief/reliefs for which the petitioner is entitle by this Hon ble Court in the facts and circumstances of the present case. 2. Petitioner no. 1 is the Self Help Group of Fish Producers. The petitioner no. 2 is the Secretary of petitioner no. 1. Petitioner no. 1 was selected as Public Private Partner in PPP Mode for construction and running of the Fish Seed Hatchery on the given Fish Seed Farm located in different districts under the control of the Directorate of Fisheries, Government of Bihar. 3. The advertisement contained a condition that after ten years of successful operation of Fish Seed hatchery an extension of another ten years may be considered on the basis of the performance. The deed of settlement dated 7th Day of January, 2010 also contains a stipulation in paragraph 4 that After ten years of successful operation an extension of another ten years may be considered on the basis of the performance . On completion of ten years as the petitioners were looking for extension of the settlement period, the impugned communication has been sent vide Memo No. 402 dated 09.05.2020 which are as under: 4. In the counter affidavit a plea has been taken that in view of Government Policy to increase/boost the production of Fish Seeds under PPP Mode, Directorate of Fisheries , Bihar had invited expressions of interest dated 16.09.2007 (Annexure 1 ) from the eligible persons and after scrutiny and following the procedures the petitioner was selected for settlement fish seed farms in the district of Nalanda and accordingly the settlement was made. 5.
5. In the counter affidavit, a stand has been taken that in the Clause 7 of the advertisement as also under clause 4 of the agreement further extension of settlement for ten years may be considered on the basis of performance but it is not mandatory in nature and the discretion in this regard lies completely with the competent authority, no vested right is there with the petitioner. 6. A plea has also been taken that in course of inspection of total six fish seed farms including this petitioner s farm, it was found that the physical condition of the farm was not proper, there were encroachment upon hatchery and there was no easy approach road leading to hatchery. In the background of the said joint inspection report the impugned decision has been taken. 7. In the counter affidavit a plea has also been taken that in a similar kind of prayer made in C.W.J.C. No. 6132 of 2020 (Vinod Mahto vs. The State of Bihar & Ors.) a learned co-ordinate Bench of this Court has held as under: Thus, this Court had asked the learned counsel appearing for the petitioner that since the aforesaid Bihar Fish Jalkar Management Act, 2006 provides for long term settlement of Jalkars only for 10 settlement years and as far as the petitioner is concerned, the period of 10 settlement years is already over, then how the petitioner can claim, as a matter of right, for extension of the said lease agreement dated 28.06.2010, to which the learned counsel for the petitioner had no legal answer, however, instead, he has submitted that the lease in question dated 28.6.2010 provides that in case extension for another 10 years may be considered on the basis of his performance. At this juncture itself it would suffice to state that Obedience of the fiat of the Law of the State is an essential ingredient of public policy. Any agree - ment/lease which does not obey the command of Law and is opposed to public policy, is therefore, void. Courts of law cannot countenance such an agreement/lease. 8.
At this juncture itself it would suffice to state that Obedience of the fiat of the Law of the State is an essential ingredient of public policy. Any agree - ment/lease which does not obey the command of Law and is opposed to public policy, is therefore, void. Courts of law cannot countenance such an agreement/lease. 8. The counter affidavit further refers the observation of the learned co-ordinate Bench that this Court is of the view that since there is a bar to the period Jalkars can only be made for 10 settlement years, the petitioner has got no right under the law to claim for extension of the said lease in question . 9. On the strength of the orders of the learned co-ordinate Bench of this Court, it has been contended that this writ application is fit to be dismissed at the threshold without going into the merit and decision making process by taking note of the statutory bar in extension of the period of settlement. 10. It is evident from the pleadings available in the counter affidavit that so far as these respondents are concerned, they have taken a stand that the extension is a matter of discretion. It is evident that from their own said they are not pleading the statutory bar to the extension of settlement but the respondents being aware of the judgment of the learned co-ordinate Bench has cited the same to oust the petitioner on the ground of statutory bar. 11. In a similar rather identical writ application being C.W.J.C. No. 6134 of 2020 (Gupteshwar Singh Vs. The State of Bihar & Ors.) which was heard prior to this case and in which judgment was reserved by this Court, the state respondents have though not quoted the judgment of the learned co-ordinate Bench of this Court but at the time of hearing reliance was placed on the judgment of the learned co-ordinate Bench and it has been submitted that there being a statutory bar as has been held by the learned co-ordinate Bench, no extension may be considered. The im- pugned order is a composite order in respect of both the writ petitions. 12.
The im- pugned order is a composite order in respect of both the writ petitions. 12. In the order passed today in C.W.J.C. No. 6134 of 2020, this Court has dealt in detail the provisions of the Bihar Jalkar Management Act, 2006 (As amended up-to-date), the nature of the notification dated 22nd April,2010 published under the Bihar Extra Ordinary Gazette on 28th April, 2010, the advertisement and the stipulations present in the settlement deed which were all identically applicable in the present case, with only difference that in this case the petitioner is a self help group and the agreement dated 07.01.2010 is pursuant to the advertisement, followed by the policy decision contained in the notification dated 28.04.2010. This Court is not reiterating the entire discussions based on legal provisions of the Act of 2006, the notification dated 28th April, 2010 and other documents as mentioned above. The rational and reasonings provided in the order passed by this Court today in C.W.J.C. No. 6134 of 2020 will be equally governing the issues involved in this case and wherever necessary may be referred to from the order of C.W.J.C. No. 6134 of 2020. 13. This Court has referred the following issues for consideration by the Hon ble Division Bench of this Court: (i) Whether the Act of 2006 would be applicable in respect of the settlement of Fish Seed Farms under the Control of the Directorate of Fisheries, Government of Bihar. If yes, (ii) Whether the notification dated 28th April, 2010 which is in the form of policy decision of the Government with respect to the norms and procedures to be followed in the matter of selection of the public private partner under the PPP Mode for establishing and running a Fish seed hatchery on a Fish seed farm under the control of the Directorate of Fisheries, Government of Bihar is in teeth of the Act of 2006 (As amended up-to-date). (iii) Whether any statutory bar may be read or inferred under the provisions of the Act of 2006 on the power of the Government in the matter of giving extension to an another term of ten years to the Public Private Partner who has been selected in accordance with the Government s policy to construct and run the Fish Seed Farm under PPP Mode on successful running of the Fish seed hatchery.
(iv) Whether the advertisement (Annexure 1 ) and the deed dated 17.05.2010 (Annexure 3 ) containing a provision for extension of settlement in question for another period of ten years in case of successful running of the Fish-Seed Hatchery for initial ten years period by the selected offerer/beneficiary would attract the principle of Promissory estoppel and the respondents would be obliged to abide by the terms and conditions of the deed dated 17.05.2010 (Annexure 3 ). 14. Let this case be also tagged with C.W.J.C. No. 6134 of 2020. 15. The interim order, if any, shall continue till next hearing of the matter before the Hon ble Division Bench.