Noorsarai Prakhand Matsyajivi Swablambi Sahkari Samiti v. The State of Bihar

Heard the parties.

2. Petitioner no. 1 is the Fishermen Cooperative Society registered under the provisions of Bihar Self 2 Supporting Cooperative Societies Act, 1996, petitioner no. 2 is it’s Chief Executive representing petitioner no. 1 and petitioner no. 3 is the Chairman of the Managing Committee of the petitioners’ society.

3. This application has been filed for quashing the order, dated 14.11.2008, passed by the Director, Fisheries, Bihar, in Appeal No. 23 of 2008, for quashing order, dated

10.12.2008, passed by the District Fisheries Officer-cum- Chief Executive Officer, Nalanda, in compliance of the order passed in appeal and for a direction to the respondents for allowing settlement of 22 jalkars in favour of petitioners’ society, including Dighi Pokhar.

4. In the district of Nalanda, within operational area of Noorsarai Block, three Fisher Men CooperativeSocieties, namely, (1) Matsyajivi Sahyog Samiti Limited, Mamurabad, Noorsarai, registered under provisions of 1935 Act (respondent no. 5), (2) Matsayajivi Swablambi Sahkari Samiti Limited, Begampur, Nalanda, registered under the provisions of 1996 Act (respondent no. 6) and (3) Noorsarai Block Matsyajivi Swablambi Sahkari Samiti Limited, Meyar, registered under the provisions of 1996 Act (petitioners’ society). Respondent no. 6 society was 3 at the relevant time a defaulter society, as such, when 29 jalkars within the operational area of these three societies fell vacant for settlement with effect from 01.07.2007 for five years, respondent no. 6 society was not eligible for settlement. A notice was issued vide letter no. 482, dated 31.-7.2007, for submitting relevant papers for settlement as required under Section 7 sub section (iii) of Bihar Fish Jalkar Management Act, 2006 (hereinafter referred to as, ‘the Act’). Petitioners’ society as well as respondent no. 5 society submitted their papers and the settlement was made in between the two societies according to the ratio of their members, vide memo no. 694, dated 27.09.2007. Twenty one jalkars of all classes were settled with the petitioners’ society for five years with effect from 01.07.2007 to 30.06.2011 on the reserve jama of Rs.3,40,950/-. Petitioner’ society deposited Rs.1,70,475/- as the first instalment revenue for settlement year 2007-2008. The District Fisheries Officer as required under Section 7(ii) of the Act sent the settlement order for approval to the Deputy Director, Fisheries, but, the settlement was disapproved vide letter no. 345, dated 05.10.2007. The order passed by the Deputy Director, Fisheries, disapproving the settlement, dated

05.10.2007, was challenged by the petitioners’ society by 4 filing Appeal Case No. 59 of 2007. The defaulter society, respondent no. 6, also challenged the order, dated 05.10.2007, by filing Appeal No. 56 of 2007. The appeal preferred by respondent no. 6 was disposed off by an order, dated

21.11.2007, and the appeal preferred by petitioners’, that is, Appeal Case No. 59 of 2007, was disposed off by order, dated

28.12.2007, in the light of the order passed in Appeal Case No. 56 of 2007. A direction was issued to comply with the order passed in Appeal Case No. 56 of 2007. In compliance of the order passed by the Director, Fisheries, in both the appeals, the District Fisheries Officer vide order, dated

21.04.2008, made settlement of 22 jalkars with petitioners’ society vide letter no. 208. The petitioners’ society was directed to deposit the revenue within 21 days of the orders and the provisional patta was also directed to be issued within this period only. The settlee society was directed to issue provisional patta village wise/panchayat wise in favour of the members after receiving revenue from them and to furnish the list in the office of the District Fisheries Officer so that registered agreement can be issued in favour of the settlee society. Respondent no. 6 society, which was defaulter in the year 2007 when initial settlement was made, 5 now had become eligible for settlement, as such, it preferred an appeal against the order of settlement, dated 21.04.2008 vide appeal no. 23 of 2008. In this appeal petitioners as well as respondent no. 5 society were impleaded as respondents. During the hearing of appeal the parties compromised their dispute by a resolution, dated 20.07.2008. Petitioner no. 3 was elected as Chief Group Leader to maintain the jalkars and cultivate fishes in time. Petitioner no. 3 in turn deputed one Arvind Kumar (Secretary of respondent no. 5 society) to perform duty assigned to him by resolution, dated 20.07.2008. In Appeal Case No. 23 of 2008 affidavits were filed by the Group Leaders of all three societies in terms of resolution, dated 20.07.2008, and the appeal was disposed off in terms of compromise by order, dated 14.11.2008.

5. In the present case, the consented order passed in Appeal, dated 14.11.2008, is under challenge on the ground that compromise order has been passed by the appellate authority on the basis of a list of jalkars agreed by the parties to be distributed among them (Annexure ‘A’ to the counter affidavit). In fact, no such list was approved by the parties in terms of compromise. Appellate order, as such, is passed on a document, which was not the part of the compromise. This 6 document has been placed by respondents later on before the appellate authority without any knowledge of the petitioners’ society due to which the appellate order is bad and consequential order passed by the District Fisheries Officer, dated 10.12.2008, in terms of compromised order passed in appeal is also bad.

6. Counter affidavit has been filed on behalf of respondent no. 5 where an objection has been raised regarding the maintainability of the writ application. The first objection is that the order, dated 14.11.2008, was passed by the appellate authority in terms of compromise and a consent order can not be challenged by any one unless it is alleged that any fraud was played by the parties to the compromise. Since, there is nothing to show that the affidavits filed by the parties either suffers from fraud, duress or coercion, the writ application could not have been filed by the petitioners against the consent order and the writ application is not maintainable. Secondly, it is submitted that in compliance of the order passed by the appellate authority the District Fisheries Officer passed an order, dated 10.12.2008, making settlement of 21 jalkars in favour of petitioners for the period 2010 to 2011. In compliance of this settlement order the 7 petitioners’ society has already deposited revenue, in this view also the writ application has become infructuous.

7. The petitioners have filed the reply to the counter affidavit and also made submission in support of the statement made in the writ application as well as reply to the counter affidavit. It transpires that petitioners have no grievance, so far settlement of 21 jalkars are concerned. Only grievance of the petitioners’ society is with regard to exclusion of Dighi Pokhar jalkar situated at Begampur in Noorsarai Prakhand appertaining to khata no. 337, plot no. 2024 having an area of 74.60 acres. This fact has been admitted by the petitioners in paragraph 9 of it’s reply to the counter affidavit.

8. What I find that earlier by order, dated

27.09.2007, 21 jalkars of all classes were settled with the petitioners’ society for five years which was not approved by the Deputy Director for the reason that the settlement has not been made with the consent of the parties. At the relevant time, respondent no. 6 society was defaulter, as such, settlement had been made in between two societies only. Subsequently, when the order was passed in the appeal, respondent no. 6 society also became entitled for settlement. 8 In the changed circumstance, distribution of jalkars has to be made among all three societies in ratio of the number of members of the concerned societies.

9. Considering all these facts and also consented resolution of the parties the appellate authority has passed the order. On perusal of the impugned order passed in Appeal Case No. 23 of 2008, it transpires that the societies had decided in two contexts any more the issue of settlement and to get their dispute resolved in terms of the resolution, dated 25.07.2008. The appellate authority has passed order in terms of resolution, dated 25.07.2008. The list of jalkars is also part of the resolution approved by the parties. The District Fisheries Officer has passed order in compliance of the appellate Court’s order as well as in terms of the resolution made in between the parties.

10. I do not find any illegality in the impugned order, dated 14.11.22008, passed in Appeal No. 23 of 2008, by the Director, Fisheries, Bihar, Patna, as well as the consequential order passed by the District Fisheries Officer, Nalanda, dated 10.12.2008. I find substance submission made by the counsel appearing for respondent no. 5 and the State regarding the maintainability of the writ 9 application against the consent order and also for the reason that the petitioners’ society has already acted upon in terms of settlement order passed by the District Fisheries Officer by deposited the revenue. This act of the petitioners has made the writ application infructuous. The petitioners’ society is not stopped from raising any objection for the reasons, stated above.

11. Accordingly, this application is dismissed. Cp:2/S.A. (Mridula Mishra, J.)