Swablambi Sahkari Samiti Ltd. vs State of Bihar and Others

S.K. Katriar, J.—Heard Mr. Ahsanuddin Amanullah for the petitioner, Mr. Rampriya Sharan Singh, learned JC to AAG I for respondent Nos. 1 to 13, Mr. Rana Ravindra Kumar Singh for respondent No. 15 and Mr. Pashupati Narayan Singh for respondent Nos. 16 and 17. This writ petition is directed against the order dated 12.3.2003/25.3.2003 (Annexure 17), passed by the learned Secretary, Department of Fisheries & Animal Husbandry, Govt. of Bihar, in file No. Fisheries Settlement 148/2002 (Shree Chander Sahani v. District Fisheries Officer, Darbhanga and Ors.), whereby fishery settlement in favour of the petitioner for the period 1.4.20Q2 to 31.3.2005 has been set aside, and has been settled in favour of respondent No. 15.

This relates to settlement of 35 Jalkars situate in the Eastern Circle of Kusheshwar Asthan, district Darbhanga, for the period 1.4.2002 to 31.3.2005, on a reserve Jama of Rs. 1,21,680/- vide order dated 5.3.2002 (Annexure 1). Possession of the fisheries were made over to the petitioner who started exploiting the same. It appears that the petitioner was the only cooperative society within the zone of consideration on 5.3.2002. The respondent cooperative society is Kusheshwar Asthan Purbi Prakhand Matsyajivi Swablambi Sahkari Samiti Ltd., Kewatgama. There was a controversy about the status and standing of the respondent cooperative society, and the order of the Assistant Registrar, Cooperative Societies, as on 5.3.2002, was that it was not a properly constituted society. In that view of the matter, settlement of the aforesaid 35 Jalkars was made in favour of the petitioner society. By order dated 21.3.2002, passed by the Secretary, Department of Cooperative Societies, the aforesaid order of the Assistant Registrar, Cooperative Societies, was set aside, as a result of which the respondent society was declared to be a validly constituted society. One Ram Kumar Mukhia had challenged the same by preferring CWJC No. 4890 of 2002, and operation of the said order dated 21.3.2002 was stayed, as a result of which the respondent society continued to be disqualified. The writ petition was ultimately dismissed by judgment dated 15.11.2002 (Annexure B/15), the legal consequence of which would be that the respondent society is a validly constituted society. This order was challenged in appeal in this Court as well as before the Supreme Court which were dismissed. It appears that after the said judgment dated 15.11.2002, the respondent society moved the appropriate authority for reconsideration of the matter which has been done, the aforesaid order of settlement dated 5.3.2002 (Annexure 1) in favour of the petitioner has been cancelled, and it has been ordered that 35 Jalkars shall be distributed between the petitioner and the respondent society, in proportion to the strength of membership, vide impugned order dated 12.3.2003/25.3.2003 (Annexure 17). Hence this writ petition at the instance of the petitioner.

While assailing the validity of the impugned order, learned counsel for the petitioner submits that in view of the admitted position that the respondent society was not within the zone of consideration on the date of the settlement, the subsequent development cannot entitle the respondent authorities to re-open the matter. He next submits that the respondent society was a defaulter on the date of settlement.

Learned counsel for respondent No. 15 has opposed the writ petition and submits that the standing of the respondent society as a validly constituted cooperative society was declared by order dated 21.3.2002 of the Secretary of the Cooperative Societies, it was in the fitness of thing that the matter should be re-opened to prevent miscarriage of justice. He relies on the judgment of the Supreme Court reported in Nawabkhan Abbaskhan Vs. The State of Gujarat, , and the judgment reported in Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, . He also submits that the respondent society was not in default on the date of the settlement.

Learned Government counsel has supported the impugned order. He submits that in view of the order of the Secretary affirmed by this Court in CWJC No. 4890 of 2002, declaring that the respondent society is properly constituted, the respondent authorities were entitled to re-open the matter to prevent miscarriage of justice. He further submits that there was no recommendation of the appropriate authorities in favour of the petitioner. He relies on the judgment dated 16.7.2003 passed in CWJC No. 4194 of 2003, Bakarganj Machhua Swalbambi Sahkari Samiti Limited, Darbhanga v. The State of Bihar and Ors.

I have perused the materials on record and considered the submissions of learned counsel for the parties. The admitted position is that the petitioner was the only cooperative society within the zone of consideration on 5.3.2002, and the position on that date with respect to the respondent society was that it was not a properly constituted society, and its status was declared by order dated 21.3.2002, which was also stayed by interim order passed by this Court in CWJC No. 4890 of 2002. It is true that the writ petition was dismissed by order dated 15.11.2002 (Annexure B/15). The legal consequence would be that the respondent society was declared to be a validly constituted society on 15.11.2002. The question for consideration, therefore, is whether or not the subsequent development will entitle the respondent authorities to re-open the matter and unsettle the settled affairs in favour of the petitioner. I have given my anxious consideration to this aspect of the matter and it appears to me that it would not be a sound exercise of discretion to re- open the matter in such a situation and in view of the materials placed before me. Allowing the matter to be re-opened for a reason obtaining in the present case will unsettle the settled matters and will quite often put a premium on the acts of omission and commission of a defaulting society. For example, if a cooperative society were in default on the date of settlement, does it qualify itself retrospectively if the arrears are paid at a later date? I am of the view that it does not.

I must at this stage consider the judgment of the Supreme Court in Nawabkhan Abbaskhan (supra). The appellant was externed u/s 56 of the Bombay Police Act, 1951 which he had disobeyed in view of his attempt to challenge the validity of the order. The appellant had ultimately succeeded and the order of externment was at a later date set aside. In the meanwhile, the appellant had incurred the wrath of the said Act, was prosecuted, and was ultimately acquitted. The issue whether or not he was guilty of violation of the order of externment, prior to its setting aside, reached the Supreme Court and it has been held that the order of externment will in law be deemed to have been set aside from the date of its nativity, and the appellant had taken the risk of ignoring the order at his own peril, he ultimately succeeded and will get the benefit of the order, and the prosecution was accordingly quashed. The judgment on the face of it seems to support the case of the respondents, but on reflection appears to be quite distinguishable and inapplicable to the facts and circumstances of the present case. That was a case relating to injury to a constitutionally guaranteed right, and that too personal liberty which has always stood on a different footing. The Supreme Court observed that an order which infringes a fundamental freedom in violation of the audi alterem partem rule is a nullity. Secondly, the violation had led to prosecution. All penal clauses have to be strictly construed, and the benefit of doubt goes to the accused. Thirdly, that was a case where no parallel right in favour of a third party had been created, as the situation is in the present case. I would, therefore, prefer to hold that in view of the situation that a right has been created in favour of the present petitioner as per the said order dated 5.3.2002, the respondent cooperative society was admittedly not in the zone of consideration on the date of settlement, the subsequent event will not entitle the State Government to re-open the matter.

Learned counsel for the respondents have also relied on the judgment of the Supreme Court in Vaish Degree College (supra). The same is inapplicable to the facts and circumstances of the present case.

Learned counsel for the petitioner submits that the respondent society was a defaulter on the date of the settlement The letter bearing memo No. 514 dated 27.12.02 (Annexure 5), from the Additional Collector, Darbhanga, to the Anchal Adhikari, Kusheshwar Asthan, stated that a sum of Rs. 1,78,977/- were government dues against the respondent society, which appeared to be a case of embezzlement, the latter was directed to enquire/investigate and submit a report. The letter also stated that no settlement may be made in favour of the respondent society till such time this issue was resolved. Letter No. 1634, dated 16.9.02, from the Additional Collector, Darbhanga, to the Anchal Adhikari, Kisheshwar Asthan, says that a sum of Rs. 5,26,000/- seems to have been embezzled by the respondent society and/or its office bearers, enquiry was ordered and report was directed to be submitted. The letter dated 14.11.2002 (Annexure 7), from the Sub-divisional Officer, Biraul, to the Anchal Adhikari (West), seems to state that the dues against the respondent society and/or its office bearers and members may be realised. It thus appears to me in view of the materials placed before me that the respondent society was a defaulter on the date of the settlement and, therefore, was disqualified from consideration.

Learned government counsel has submitted that there was no recommendation in favour of the petitioner and, therefore, settlement could not have been made in favour of the petitioner. He submits that in view of the order dated 16.7.03, in CWJC No. 4194 of 2003, such a recommendation is essential. It appears to me that this is essentially an issue of fact and was not raised or discussed at earlier stage. The factual foundation laid in this behalf in the counter affidavit of respondent No. 2 is wholly inadequate to raise this question. The statement made there under is nebulous and rather difficult of comprehension.

In the result, this writ petition is allowed. The impugned order dated 12.3.2003/25.3.2003 (Annexure 17), is hereby set aside. This Court had refused to stay operation of the impugned order and had instead chosen to dispose of the writ petition expeditiously. In view of the success in the writ petition, it goes without saying that no injustice should occur to the petitioner. He shall, therefore, be allowed to work the settlement for a full period of three years.

The writ petition is accordingly disposed of.