KUNAL NISHAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioners and learned counsels for the State, for respondent No. 6 and respondent Nos. 5, 8 & 9. The petitioners seek a direction on the respondents not to interfere with the possession of Kakedah Jalkar-cum-Makhana Mahal as well as for quashing the impugned order dated 6.2.2013 passed by the Divisional Commissioner, Purnia in Misc. Appeal No. 287 of 2012 by which the settlement of the said Jalkar in favour of the petitioners has been cancelled.

(2.) Briefly stated the fact that the petitioners are members of Pranpur Matsyajivi Sahyog Samiti Ltd. which is the amalgamated Co-operative Society for Pranpur Block in the district of Katihar. The petitioner No. 1 is the group leader of the other petitioners and together they applied on 8.8.2012 before the Secretary of the said Society for settlement of Kakedah Jalkar-cum-Makhana Mahal for the period of 2012-13 in their favour. The said Kakedah Jalkar-cum-Makhana Mahal is one of the 35 fisheries-cum-Makhana Mahal and 41 fishery Jalkar within Pranpur Block. The amalgamated Co-operative Society held a general meeting on 8.8.2012 in which it is claimed that notices were sent to all the members of the Society. It is the stand of the petitioners that the authorities of the said Society accepted the application of the petitioners for settlement of the said Jalkar for an amount of Rs. 1,03,500/- for which the petitioners deposited Rs. 57,000/- on 29.9.2012 as 50% of the amount in token of deposit of reserve jama for which receipts were issued. The Secretary of the Society also issued the settlement paper with respect to the said Jalkar on 29.9.2012. It is further claimed by the petitioners that they have taken possession of 97.75 acres area of Kakedah Jalkar-cum-Makhana Mahal and engaged 100 labourers for clearance of Jalkar and also planted the plants of Makhana and poured Jira (small fishes) in the said Jalkar and thereby the petitioners have incurred a huge expenditure over the same as also over pesticides and insecticides.

(3.) The stand of respondent No. 6 and other supporting private respondents, on the other hand, is that by order dated 14.9.2012 of the District Fishery Officer-cum-Chief Executive Officer, Katihar made a short-term settlement of 35 Jalkar-cum-Makhana Mahals for the annual reserve price of Rs. 4,39,350/- for the period of 7 years from 1.10.2012 to 30.9.2019 with the aforesaid Society. It is stated that much prior to the said settlement the respondent No. 6 had applied for settlement of Kakedah Jalkar thrice including lastly on 8.8.2012 when the said respondent and 33 other members expressed their willingness for settlement of Kakedah Jalkar by handing over their applications to the Secretary of the Society but the Secretary who is father of petitioner No. 1 refused to give any receipt for the same, upon which the application was filed before the Member of the Executive Committee who had given the receipt. It is also their stand that as a matter of fact no decision was taken on 8.8.2012 by the Managing Committee regarding distribution of the Jalkars among the members as the members only put their signatures and filed their applications. It is the further stand that the Secretary of the Society, Ghanshyam Singh, has been ensuring that the Kakedah Jalkar which is having an area of 97.75 acres and big enough to accommodate at least 100 members of the society has continued to be settled for the last 20 years with the members of his family. Apprehending foul play during this settlement also respondent No. 6 filed a petition before the Collector on 9.8.2012 stating the facts and requesting him to make an enquiry in the matter through the District Fishery Officer so that the Kakedah Jalkar may be settled with them. The respondent filed a petition in this regard before the concerned Minister also, sending copies of the same to the District Fishery Officer and Assistant Registrar, Co-operative Society, Katihar for settlement of the Jalkar in accordance with law. It is stated that respondent No. 6 and others approached various authorities in the matter but ultimately upon finding that the father of petitioner No. 1 was hell bent upon distribution of Jalkars to his son and other members of his family they approached the Divisional Commissioner by filing an appeal on 11.12.2012. The petitioners were issued notices and they appeared but did not file their written statement. Ultimately the Commissioner by the impugned order dated 31.1.2013/6.2.2013 came to the conclusion that the Secretary in making the settlement with his son did not take into account conflict of interest involved and he should have recused himself from the settlement. He also found various irregularities in the distribution of Jalkars by not following the procedure to make proportionate distribution of the Jalkars in violation of provisions of Section 10 of Bihar Fish Jalkar Management Act, 2006 for the purpose of subserving the private interest. He therefore came to the conclusion that the settlement was contrary to law and principles of natural justice. Accordingly he set aside the settlement of Kakedah Jalkar and another Roshna Kundi Jalkar and directed the District Fishery Officer-cum-Chief Executive Officer, Katihar to make proportionate distribution of the said Jalkars between the appellant before him and other members so that the interest of fishermen members could be protected. Pursuant to the same the District Fishery Officer-cum-Chief Executive Officer, Katihar by his order dated 26.2.2012 restrained the petitioners from making any investment or taking out anything from the said Jalkars. Aggrieved by the same the petitioners have approached this Court.