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Judgment
This writ petition has been filed under Article 226 of
the Constitution of India for quashing letter no. 757 -758 both
dated 11.7.2012, as contained in annexure 3 series, by which
respondent no.5, District Fisheries officer, Samastipur directed
the petitioners to deposit Rs. 4, 20,000/- as return of the loan and
furthermore, for quashing letter no. 1006 dated 29.9.2012 dated
29.9.2012, as contained in annexure 4, by which respondent
no.5, District Fisheries officer, Samastipur directed the
petitioners to deposit amount involved in letter no. 645 dated
16.6.2012 and letter no. 757 dated 11.7.2012, and furthermore,
for issuance of direction to respondent no.5 not to take any step
treating the petitioners'' society as defaulter and also for issuance
of direction to respondent no.5 to settle all Jalkars situated in
block Bithan with petitioners'' society.
The brief fact, which lies to file this writ petition, is
that there were two Fishermen Cooperative Societies operating
in Bithan block district Samastipur namely, Bithan Prakhand
Matasyajeevi Sahyog Samiti Ltd registered under the Bihar
Cooperative Societies Act, 1935 and Bithan Prakhand
Matasyajeevi Swalambi Sahakari Samiti Ltd registered under the
Bihar Self Supporting Cooperative Societies Act, 1966.
The State Government decided to restore existing ox
bow lakes to tap immense potentiality for increasing fish
production and for that purpose issued letter no.561 in which
name of Sondhar Jheel and name of Bharthua Jheel were
mentioned at serial nos. 21 and 24 respectively which has been
annexed as annexure 1 to this petition.
According to the aforesaid letter, a provision was
made for cooperative societies to take interest free loan. In the
year 2008 the above stated Sondhar Jheel and Bharthua Jheel as
well as several other Jalkars were settled with Bithan Prakhand
Matasyajeevi Swalambi Sahakari Samiti Ltd and the aforesaid
society was selected for implementation of the scheme of the
above stated two ox bow lakes and for that purpose, an
agreement was executed between District Fisheries officer and
respondent no.6 who was chief executive of the aforesaid
society on 28.4.2008. Accordingly, Rs. 4, 20,000/- loan was
given to the above stated society. The respondent no.6 being
chief executive of the aforesaid society was required to return
loan amount in five instalments but respondent no.6 even after
receipt of loan amount did not start any development work nor
paid any instalment of the loan. The District Fisheries officer,
Samastipur was required to initiate a certificate case against
respondent no.6 in the year 2008-09 itself, but he did not initiate
any certificate case and kept mum for near about four years.
However, in the meantime, a new section 11B was inserted in
Bihar Cooperative Societies Act, 1935 by amendment Act 22 of
2010 as a result whereof all block levels fishermen cooperative
societies merged in one society registered under the Bihar
Cooperative Societies Act, 1935. Accordingly, the above stated
two societies namely, Bithan Prakhand Matasyajeevi Sahyog
Samiti Ltd and Bithan Prakhand Matasyajeevi Swalambi
Sahakari Samiti Ltd merged and a new society i.e. petitioner
no.1 was registered under the Bihar Cooperative Societies Act,
1935 on 18.12.2010.
Furthermore, case of the petitioners is that the
petitioners received two letters being letter no. 757 and 758 both
dated 11.7.2012 which have been annexed as annexure 3 series
to this petition, by which District Fisheries officer, Samastipur
directed the petitioners to deposit loan amount of Rs. 4, 20,000/-
by 16.7.2012, failing which certificate case shall be initiated
against the petitioners. Furthermore, by letter no. 645 dated
16.6.2012, District Fisheries officer, Samastipur directed the
petitioners to deposit dues revenue of Rs. 1, 51,570/- and vide
letter no. 1006 dated 29.9.2012, District Fisheries officer,
Samastipur, again, directed the petitioners to deposit the amount
as mentioned in letter no. 645 dated 16.6.2012, failing which
claim of petitioners'' society will be rejected and settlement of
Jalkar will be made through bid. However, petitioners'' society
deposited dues revenue of the year 2011-12 amounting to Rs. 1,
51,570/- on 19.9.2012 which is evident from perusal of annexure
6 to the petition and also deposited loan amount of Rs. 4,
20,000/- under protest which is evident from perusal of annexure
A to the counter affidavit.
The main grievance of the petitioners is that loan was
taken by respondent no.6 while he was chief executive of
erstwhile Bithan Prakhand Matasyajeevi Swalambi Sahakari
Samiti Ltd but District Fisheries officer, Samastipur did not take
any step for realization of the aforesaid loan amount from
respondent no.6 rather illegally and in arbitrary manner issued
notices to the petitioners for realization of the aforesaid loan
amount from them and under compulsion and pressure of
cancellation of settlement of their society, petitioners deposited
the aforesaid loan amount.
Counter affidavit has been filed on behalf of the
respondent nos.1 to 5 with specific pleadings that loan amount
has already been deposited by the petitioners and after deposit of
the loan, order of settlement of all Jalkars situated within the
area of petitioners'' society has already been issued and
similarly, dues of Rs. 1, 55,300/- has also been deposited and,
therefore, all grievances of petitioners'' society has already been
redressed.
Respondent no.6 did not appear in spite of service of
notice.
Learned counsel appearing for the petitioners
submitted that it is admitted position that loan of Rs. 4, 20,000/-
was taken by respondent no.6 being chief executive of erstwhile Bithan Prakhand Matasyajeevi Swalambi Sahakari Samiti Ltd
and it was respondent no.6 who executed an agreement and also
gave guarantee of the aforesaid loan amount. Learned counsel
for the petitioners further submitted that for the above stated
loan amount, members of the present society can not be held
responsible and no recovery can be made from them as
respondent no.6 is not member of the present society. She
further submitted that there is nothing in the relevant provision
of the Bihar Cooperative Societies Act, 1935 that new society is
liable for dues of old society. She further submitted that District
Fisheries officer, Samastipur ought to have lodged certificate
case against respondent no.6 as well as the then society for
realization of loan amount but in stead of that District Fisheries
officer, Samastipur issued notices to the present society for
realization of the above stated amount and the petitioners under
compulsion and pressure deposited the said loan amount with
protest and, therefore, the aforesaid deposited amount should be
returned to the petitioners.
On the other hand, learned counsel for the
respondent nos. 1 to 5 refuted the above stated submissions
arguing that erstwhile Bithan Prakhand Matasyajeevi Swalambi
Sahakari Samiti Ltd merged with the present society with all
liabilities and, therefore, District Fisheries officer, Samastipur
rightly issued notices to the petitioners for realization of loan
amount. He further submitted admittedly, settlement of Jalkars
has already been made to the petitioners after depositing loan
amount as well as dues and, therefore, this writ petition has
become infructous and is liable to be dismissed being infructous.
It is admitted position that prior to insertion of
section 11B of the Bihar Cooperative Societies Act, 1935, two
societies i.e. Bithan Prakhand Matasyajeevi Sahyog Samiti Ltd
as well as Bithan Prakhand Matasyajeevi Swalambi Sahakari
Samiti Ltd were functional in Bathan block of Samatsipur
district and after insertion of section 11B of the Bihar
Cooperative Societies Act, 1935, both the above stated societies
stand merged and in view of the aforesaid section 11B of the
Act, petitioner no.1 was registered as a new cooperative society.
The aforesaid amendment in the Bihar Cooperative Societies
Act, 1935 was made by amendment Act 22 of 2010. It is also
admitted position that loan amount was taken by erstwhile
Bithan Prakhand Matasyajeevi Swalambi Sahakari Samiti Ltd on
28.4.2008 and petitioner no.1 was recognized as new society
under section 11B of the Act on 18.12.2010. The erstwhile
Bithan Prakhand Matasyajeevi Swalambi Sahakari Samiti Ltd
was required to refund the amount of loan after 12 months in
five equal instalment within the period of five years which is
evident from clause IV of annexure 2, the agreement executed
by respondent no.6. The aforesaid clause lV of the agreement
also goes to show that respondent no.6 conceded to be guarantor
of the aforesaid loan and clause VI of the aforesaid agreement
goes to show that on default of deposit of instalment amount,
settlement was liable to be cancelled after issuance of show
cause notice and a certificate case was to be lodged for
realization of dues amount. However, it is admitted position that
neither any show cause was issued to respondent no.6 nor any
certificate case was lodged against him. However, it is pertinent
to be noted here that before expiry of period of settlement,
erstwhile Bithan Prakhand Matasyajeevi Swalambi Sahakari
Samiti Ltd had already lost its existence and merged into new
society in view of new section 11B of the Bihar Cooperative
Societies Act, 1935 and, therefore, it is obvious from the
aforesaid facts that after taking loan amount, erstwhile Bithan
Prakhand Matasyajeevi Swalambi Sahakari Samiti Ltd was in
existence only for near about two and half years.
Here, I would like to refer section 11B of the Bihar
Cooperative Societies Act, 1935 which was inserted by Act 22 of 2010 and runs as follows:
" Notwithstanding anything contrary contained in any provision of Bihar Act VI of 1935 or any other Act, Rules made thereunder and Bye-laws of a registered Cooperative Society or class of Cooperative Societies, any order issued by the State Government or Registrar, Cooperative Societies, all existing Fishermen Cooperative Societies at block level, area of operation being confined to the Geographical limit of the Block shall stand merged in one Cooperative Society and shall be deemed to be registered as a new Cooperative Society under Bihar Act VI of 1935, and the Registrar, Cooperative Societies shall issue registration certificate : Provided that on such registration, all members of the existing Co-operative Society or Societies registered under Bihar Act VI of 1935 or Bihar Self Supporting Co- operative Societies Act, 1966 shall be deemed to have become members of such recognized Society and shall have all rights and liabilities as members of the said Society : Provided further that on such reorganization, for managing the affairs of the new Society and all such affiliating Societies of which the Fishermen Co-operative Society is a member, the Registrar/Government shall constitute and ad hoc Managing Committee for a period not exceeding one year, within which the new Managing Committee shall be constituted after elections."
From bare perusal of the aforesaid provision, it is obvious that after merger of two or more societies, members of
the aforesaid societies shall be deemed to have become members
of new recognized society and members of erstwhile society
shall have all rights and liabilities as members of the said
Society. Therefore, it is clear that members of erstwhile society
shall have not only their previous rights but also their previous
liabilities after merger in view of section 11B of the Bihar
Cooperative Societies Act, 1935. Furthermore, aforesaid
provision goes to show that after coming into force of new
section 11B, members of erstwhile society shall automatically be
made members to recognized society under section 11B of the
Act. Therefore, in the aforesaid circumstances, if any loan had
been taken by erstwhile Bithan Prakhand Matasyajeevi
Swalambi Sahakari Samiti Ltd prior to its merger with new
society, all members of new society recognized under section
11B of the Act shall be liable to return the aforesaid loan amount
because they have become members of new society not only
with their previous rights but also with their previous liabilities
and so, in my view, District Fisheries officer, Samastipur rightly
issued notices to the petitioners for recovery of the aforesaid
loan amount.
It has been argued on behalf of the petitioners that
respondent no.6 had taken the above stated loan on behalf of
erstwhile Bithan Prakhand Matasyajeevi Swalambi Sahakari
Samiti Ltd but misappropriated the aforesaid amount and even
then District Fisheries officer, Samastipur neither issued any
notice to him nor initiated any certificate case against him but, in
my view, even if it assumed that District Fisheries officer,
Samastipur did not issue any notice nor initiated any certificate
proceeding against respondent no.6, then also, the aforesaid
laches on the part of the District Fisheries officer, Samastipur
shall not absolve the petitioners from their liability and, at best,
petitioners may take steps in accordance with law for initiation
of criminal case against respondent no.6.
In view of the aforesaid discussions, this petition
stands disposed of giving liberty to the petitioners that the
petitioners may take action in accordance with law against
respondent no.6.