FALTA FORT REFUGEE FISHERMENS CO OPERATIVE SOCIETY LTD Vs. ADDITIONAL DISTRICT MAGISTRATE E A 24 PARGANAS

JUDGEMENT

(1.) THIS appeal is directed against an order dated May 30. 1973 made in Civil Order No. 839 (W) of 1973 by Chittatosh Mookerjee, J. By the said order his Lordship dismissed an application under Article 226 of the constitution of India without issuing a rule. The appellants, a Fishermens' co-operative Society contended that about 23 years ago the predecessors of the present members of the Society had settled on the Khasmahal lands situated within Mouza Falta village Falta 24 pargans with the object of catching fish from the chanels, tanks, bills and other watery areas of the said mouza for their maintenance and livelihood. It has further been contended that the said persons have improved the area by cutting and clearing the jungles and they were and are fishermen by caste and profession.

(2.) THE Co-operative Society, it has been alleged, was formed as for back as 1950 at the initiative of the state government and the same is also a registered one. In the petition used as grounds of the motion it has further been contended that the Co-operative Society and its members were given assurances to settle the jheel for their economic re-habilitation and in fact the families of the members of the Society in question who were considered to be refugees were granted house building loans for construction of their houses. In the petition, the petitioners have also given some particulars about the accommodations they have received from the directorate of Fisheries and it has further been averred that their families were rehabilitated in the lands of all Falta Fort and the jheel which encircles the colony and the same was leased out to the Society for five years at an annual economic rent of rs. 301/- in 1950 and since then the society is in possession of the same. It has further been alleged that at all material times, the petitioner Society was in possession of the jheel in question on payment of rent or charges and the last of such settlement i. e. for the year 1377 B. S. was made pursuant to a tender notice dated February 24, 1970 for a sum of Rs. 502/ -. It appears that thereafter on March 16, 1973 a notice was issued for holding an open auction of the jheel in question and pursuant to the said notice the petitioner Society along with Respondent No. 8 filed their tenders. As the tender of the said respondent No. 8 was highest, his bid was referred to that of the petitioner society. Against such order, the petitioner-Society moved an application under article 226 of the Constitution of India, which was dismissed in the manner stated hereinbefore. It appears that in the petition it has been contended that there was a promise given to the petitioner Society by the Government and because of such promise the jheel in question should have been settled with them. Mr. Justice Chittatosh Mookerjee while dismissing the application held that no prima facie case was made out for the issue of a Rule and in support of the contentions made hereinbefore, there is no averment in the petition to the effect that on the basis of the promise as mentioned hereinbefore the petitioner-society has acted or taken steps to the detriment of their interest. His Lordship further found that the settlement of the nature which Wits involved in the proceedings was made under the provisions of the West Bengal government Estates Manual which has no statutory force and therefore no writ was available to the petitioner. The said manual is nothing but a reproduction of departmental instructions for the guidance of the Officers of the government. Apparently His Lordship made such determination on the basis of the case of Bidyadhari Spill Matsyajibi samabaya Samity Ltd. v. State of West bengal, reported in 65 C. W. N. 685 a. I. R. (1961) Calcutta 214. The view expressed in the said case, it may be mentioned incidentally, has also been subsequently accepted in the case of lalgola Padma Fisherman's Co-operative society v. State of West Bengal, a decision of D. Pal J. reported in 78 C. W. N. 386.

(3.) IN this appeal against the said order of rejection, Mr. Basu, the learned advocate for the appellants has contended relying on the cases of Union of india v. M/s. Anglo Afghan Agencies, reported in A. I. R. 1968 S. C. 718 and a still later decision in the case of century Spinning and Manufacturing Co. v. Ulhasnagar Municipality, reported in a. I. R. 1971 S. C. 1021 that from the proceedings and records as disclosed it is apparent that a promise was made by the appropriate authorities to settle the jheel in question with the Society and because of such promise and also because of the fact that the Respondent No. 8 was neither a fisherman nor a resident of the locality, the appropriate authorities had acted illegally, with material irregularity, arbitrarily and in capricious use of their jurisdiction and authority in having the tender notice dated 16th March, 1973 issued. It has further been alleged that the settlement of the jheel in question with the Respondent No. 8, pursuant to the said invalid, irregular and Void notice, was improper and as such, such settlement has not given any authority to the Respondent No. 8 to hold and use the jheel in question. Mr. Basu, on a consideration of the tender notice, the purported promise in Annexure "k" dated 7th March, 1972 and the recommendations contained in Annexure "a" to his clients' Affidavit-in-reply which is a Memo dated 11th April, 1973 from the Inspector of Co-operative societies, to the Assistant Registrar of co-operative Societies, contended that once the jheel in question was settled with the petitioner Society, the same should have been settled with them on all subsequent years irrespective of the fact whether the co-operative Society has made their bid or not. He further contended that in the facts and circumstances of the case no tender was required to be called for the purpose of settling the jheel in question. In short his submissions were that his clients, because of the earlier settlements, acquired a right and such right could not be interfered with by calling fresh tender for the auction of the jheel. He also argued that whether or not his clients have given a bid or offered any amount for the settlement of the jheel in question, the appropriate authorities, who are respondents herein should have settled the same with them. In fact he argued that payment of money or amount even equal to the reserve price for the settlement of the fishery was immaterial in the instant case.