RISHIKESH KASHYAP Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONERS are the Fisherman Cooperative Society registered under Section 5 of the Bihar Self Supporting Co -operative Society Act, 1996. Area of operation of both the society is to the extent of Darbhanga Anchal and the dispute relates to five jalkars which are Fish -cum -Makhana jalkars situated within the area of operation of Darbhanga Anchal. These jalkars belong to Revenue Department and used to be settled by the officials of the Revenue Department. The Revenue Department vide Memo no. 672. dated 4.9.2004 transferred all Fish -cum -Makhana jalkars to the Fisheries Department with a direction that from the date of issuance of this letter the settlement of Makhana jalkars will be made by the Fisheries Department. The jalkars which has already been settled on expiry of the period will be settled in future by the Fisheries Department.

(2.) PRAYER made by the petitioners in the present application is for quashing the order dated 30.9.2004 (Annexure -1) by which the Anchal Adhikari, Darbhanga has settled five Fish -cum -Makhana jalkars situated in Darbhanga Anchal in favour of respondent no. 8 society in complete violation of the letter issued by the Revenue Department vide Memo no. 672. dated 4,9.2004. It is stated that the Anchal Adhikari was informed about the letter of the Revenue Department on 28.9.2004 as it was served to him by the petitioner alongwith his petition dated 28.9.2004. Even then on 30.9.2004 violating the circular and the direction of the State Government the Circle Officer has made settlement of five jalkars in favour of respondent no. 8 society. Further settlement has been challenged on the ground that without publishing the notice in two newspapers regarding the settlement of jalkars of which reserved zama is more than Rs. 50,000/ -(Fifty thousand). The circular no. 668 dated 1.8.2002 of the Revenue Department indicates that the jalkars of which reserved zama is more than fifty percent, the settlement should be made after publication in two newspapers. Reserved zama of Harahi Pokhar is Rs. 97,750/ - and Dighi Pokhar is 1,15,000/ - but the settlement has been made without publication in two newspapers as required under the Circular of the Revenue Department. Another reason for challenging the settlement is that the respondent no. 8 society was a defaulter on the date of settlement and no settlement should have been made in favour of a defaulter society. In spite of that the settlement has been made by the Circle Officer for some extraneous reason and that must be quashed.

(3.) IT has been submitted by the counsel for the respondents that Memo no. 672 dated 4.9.2004 unless published in the extra ordinary gazette was only a decision of the cabinet and the question arises whether it will come into effect from the date of the order or from the date of its publication in the extra ordinary gazette. This letter was not communicated to the concerned authorities, therefore, it cannot be said that the Circle Officer without its communication could have started acting in terms of Memo no. 672 dated 2.9.2004. Further it has been stated that so far as Dighi and Harahi Tank are concerned, they are tanks concerned with the community benefit and even according to letter no. 672 dated 4.9.2004 such sairats were not to be transferred to the department of Fisheries and it remained under control of Land and Revenue Department. In support of his submission Annexure -9 series have been annexed. It has also been stated that in paragraph 6 of the letter no. 672. dated 4.9.2004 it is mentioned that within six months, the list of those jalkars which are going to be transferred to Fishery Department will be made available to the concerned authorities unless this list is published and communicated, it is not probable that the settlement will be made by the department of Fishery. Six months time is indicative of this fact that the direction issued in this letter will be effective from the date of its publication in extra ordinary gazette. Regarding the non -publication of the notice in the newspapers for settlement of those jaikars which is more than rupees fifty thousand, it has been submitted that since the settlement was to be done on fixed reserved zama in that case only when no society would have been ready to take settlement on fixed reserved jama, there would have been any requirement for publication in the newspaper. The respondent society was to take settlement on reserved fixed zama as such there was no need for publication. In reply to the allegations against respondent no. 5 of being defaulter, it is stated in paragraph 28 of the counter affidavit that no dues certificate has been issued in his favour by all concerned authorities much prior to the date of settlement. Further it has been stated that the petitioners society is incompetent to take settlement as society has been declared farzi and fictitious at the district level.