Bhokhara Prakhand Matshyajivi Swablambi Sahyog Samiti Limited v. The State of Bihar & Ors

.. Mr. Baidyanath Thakur, J.C. to S.C. XVIII /4/

23.06.2009 Heard the parties. ****

This application has been filed by the petitioners, who are a self supporting fishermen cooperative society, it’s Chief Executive and Secretary, for quashing the order, dated

25.06.2008, passed by the Director, Fisheries, Bihar, Patna. The petitioners have challenged the impugned order, dated 2

25.06.2008, on the ground that the Director has reviewed it’s own order, dated 24.04.2008, passed in Appeal No. 19 of 2007 in exercise of review jurisdiction though not vested with such jurisdiction under the Bihar Fish Jalkar Management Act, 2006. Petitioner no. 1 is a Self Supporting Fishermen Cooperative Society Act registered under Bihar Self Supporting Cooperative Societies Act, 1996. Petitioner no. 1 is the Chief Executive of the society and petitioner no. 2 is it’s Secretary. Respondent no. 4 is also a Fishermen Cooperative Society registered under 1996 Act. Name of the societies is Bhokhara Prakhand Matshyajivi Swablambi Sahyog Samiti Limited, but, the management and operational area of petitioners’ society and respondent no. 4 are different. The operational area of petitioners’ society is whole Bhokhara Block and the operational area of respondent no. 4 is only nine panchayats of Bhokhara Block out of total eleven panchayats. A dispute was raised in between the petitioners’ as well as respondent no. 4 society when the District Fisheries Officer settled all 57 jalkars with the petitioners’ society by order, dated 18.04.2007. Not a single jalkar settled in favour of respondent no. 4 society, treating it not entitled for settlement for the reason that it is disqualified 3 for settlement since the society is not registered at block level under the Bihar Cooperative Societies Act, 1935, and the Bihar Self Supporting Cooperative Societies Act, 1996, as such, it is not a society under the provisions of Section 2 sub section (ix) of Bihar Fish Jalkar Management Act, 2006. Respondent no. 4 challenged the settlement order in Appeal No. 19 of 2007. During the pendency of the appeal registration of petitioners’ society was declared void ab initio by the Registrar, Cooperative Societies.

The District Fisheries Officer by order, dated

18.04.2007, considering development whereby registration of petitioners’ society was cancelled. Now only society which remained in the field of operation was respondent no. 4, as such, settlement was made in favour of respondent no. 4 by the order of the Director, Fisheries, Bihar, Patna. The petitioners challenged the order passed by the Registrar canceling it’s registration by filing C.W.J.C. No. 8932 of 2007. Petitioners also filed C.W.J.C. No. 11695 of 2007 challenging cancellation of settlement order in favour of petitioners and settlement in favour of respondent no. 4. An order of stay was passed, as such, till disposal of the writ application petitioners remained in poossession of all 57 4 jalkars settled in it’s favour. C.W.J.C. No. 8932 of 2007 was allowed by order, dated 13.11.2007 quashing the order passed by the Registrar, Cooperative Societies, canceling petitioners’ registration as void ab initio. C.W.J.C. No. 11695 of 2007 was also allowed and the order of the Director, Fisheries, Bihar, dated 22.08.2007, was quashed. The appeal was remitted to the Director for passing a fresh order. The Director, Fisheries, Bihar, on remand, after hearing both the parties, by order, dated 22.04.2008, dismissed Appeal No. 19 of 2007 preferred by respondent no. 4 affirming the order passed by the District Fisheries Officer, Sitamarhi, making settlement of all 57 jalkars in favour of petitioners’ society. Respondent no. 4 just after five days of the order passed in appeal filed a review petition before the Director, Fisheries, Bihar, on 29.04.2008. The Director, Fisheries, by order, dated 25.06.2008, reviewed it’s earlier order, dated

24.04.2008. The settlement made in favour of the petitioners was cancelled and the District Fisheries Officer, Sitamarhi, was directed to make resettlement of the jalkars in favour of both the societies in ratio of the number of members with effect from 1st July, 2008.

The petitioners have challenged the impugned 5 order passed by the Director in exercise of review jurisdiction on the ground that it is illegal. It has been contended on behalf of the petitioners that in absence of statutory provision under the Bihar Fish Jalkar Management Act, 2006, vesting the Director, Fisheries, with the power of review, reviewing application filed by respondent no. 4 could not have been entertained. Counsel for the petitioners has submitted that it is well settled that the scope for exercising review jurisdiction arises only, on discovery of a new material or on the ground of error apparent on the face of the record in case authority concerned is vested with this jurisdiction. In the present case, none of the grounds were available to the Director for reviewing his own order passed on merit specially when he was not vested with such jurisdiction. Petitioners’ counsel has submitted that once the Director has passed an order on merit and disposed off the appeal, he became functous officio in absence of any provision of review in the Act. Any quasi judicial authority can be vested with the review jurisdiction only under the provisions of the statute. The Director could have exercised this jurisdiction only if such jurisdiction would have been vested in him under the provisions of the Act. Since, it is not contemplated by the Act, the review 6 jurisdiction exercised by the Director is illegal, arbitrary, without jurisdiction and order passed fit to be quashed.

Counter affidavit has been filed on behalf of respondents 2 and 3 where it has been admitted that under the provisions of Bihar Fish Jalkar Management Act, 2006, there is no provision for review, but, since the Act is silent, as such, Section 114 of the the procedure of Civil Procedure Code will apply in the case. Section 114 of the Civil Procedure Code read with order 47 Rule 1grants power to review. The Director, since, was exercising quasi judicial jurisdiction, as such, he could have reviewed it’s own order.

I do not find much substance in this submission. The power of review is not inherent power, it is a creature of statute. Law must confer it either specifically or by necessary implication. The quasi judicial authorities can exercise review jurisdiction only when statute vests such power in them. Respondent no. 2 had no inherent power. Neither he was vested with such power under the statute, as such, taking aid of Section 114 of the Civil Procedure Code read with order 47 Rule 1 of the Civil Procedure Code he could not have exercised this jurisdiction.

Considering this fact, the impugned order 7 reviewing it’s own order by the Director as well as all consequential orders passed by the District Fisheries Officer, Sitamarhi, are illegal and without jurisdiction, as such, they are quashed. The subsequent orders, contained in Memo No. 776, dated 06.09.2008, and Memo No. 777, dated 06.09.2008, whereby the society have been asked to submit their relevant documents for fresh settlement and also the subsequent settlement order made by Annexure 10 are also quashed. The settlement made in favour of petitioners by the earlier order will continue. However, respondent no. 4 has liberty to challenge the order passed by the appellate authority before the appropriate forum as provided under Section 14(ii) of the Bihar Fish Jalkar Management Act.