Ali Nagar Anchal Matsyajivi Swablambi Sahakari Samitee Limited vs The State of Bihar and Others

S.K. Katriar, J.—Heard Mr. Tej Bahadur Singh for the Petitioner, Mr. Rampriya Sharan Singh, learned junior counsel to AAG I appearing for Respondent Nos. 1 to 4, and Mr. Bindhyachal Singh for Respondent No. 5 (Ali Nagar Prakhand Matsyajivi Swablambi Sahakari Samitee Harihat). This writ petition is directed against the order dt. 30.6.2003 (Annexure-10), passed by the Secretary to the Department of Animal Husbandry & Fisheries (Directorate of Fisheries), Govt. of Bihar, Patna, whereby he has directed for distribution of 93 Jalkars in the Ali Nagar Anchal between the Petitioner and Respondent No. 5 in accordance with the strength of membership of the two societies. This writ petition is further directed against the consequential orders dt. 7.7.2003 (Annexure 2), and 7.7.2003 (Annexure 1).

According to the writ petition, there was a controversy with respect to the status of Respondent No. 5 which was disposed of by an order of the Registrar of the Societies was challenged in this Court in a writ petition, and lastly in a Letters Patent Appeal. The substance of the order on the writ petition and affirmed in appeal was that Respondent No. 5 was initially registered under the Bihar Co-operative Societies Act 1935, and had validly been converted into a society under the Self-supporting Co-operative Societies Act, 1996. Prior to the commencement of the said controversy, some out of the 93 Jalkars in the Ali Nagar Anchal were settled in favour, of the Petitioner, some others were settled in favour of Respondent No. 5, and the remaining 38 Jalkars had not been settled. f During the pendency of the aforesaid pro-I ceding, the said 38 Jalkars were settled if in favour of the Petitioner by order bearing No. 1001, dt. 20.5.2002 (Annexure subject to the result of the said providing. After the judgment in the writ action was handed down with the afore result, the Respondent authorities dead to review the allotment of 38 Jalkars led to the impugned order dt. 6.2003 (Annexure 10), whereby the Dementia Secretary reviewed the entire petition and decided that the 38 Jalkars till be distributed between the two sock after taking into account two factors, newly, the strength of membership of the societies, and taking a holistic view of same, namely, 93 Jalkars as a whole, at the said order dt. 30.6.2003 (Annexure I was passed on the basis that the sight of the membership of the Petitioner is 533, and that of Respondent No. 5 709. This was followed by the congenital order dt. 7.7.03 (Annexure 1), ere by the provisional settlement of the d 38 Jalkars in favour of the Petitioner order dt. 20.5.2002 (Annexure 4) was celled. It was followed by the next sequential order of the same date vide annexure-2, whereby the 38 Jalkars have en redistributed on the basis of the eight of the membership of the two societies stated in the said order 30.6.2003.

While assailing the validity of the impugned order, learned Counsel for the Petitioner submits that the strength of membership of the Petitioner society is 735 and the distribution of Jalkars should be on this basis. He next submits that Respondent No. 5 was a defaulter on the date of the settlement and, therefore, he is disentitled from consideration. He relies on the judgment dt. 21.7.2003, passed by this Court in CWJC No. 5025 of 2003 Katra Anchal Matsyajivi Swablambi Samiti Ltd. v. State of Bihar and Ors.

Learned Counsel for Respondent No. 5 has submitted in opposition that it has been held in the judgment dt. 5.4.2004, passed in CWJC No. 9392 of 2001 Rishikesh Kashyap v. State of Bihar and Ors. that the resolution dt. 12.8.99, which was in question therein, which was to the effect such Jalkars should be distributed on the basis of the strength of membership of the society in the contest to be unenforceable in law for the reason that the same were not issued in terms of Article 166 of the Constitution of India. In his submission, therefore, Circular No. 1180, dt. 5.7.2000, relied on by the Departmental Secretary, is to the same effect and, is unenforceable for the same reason. He next submits that Respondent No. 5 is not a defaulter because the dues have subsequently been paid. He lastly submits that Respondent No. 5 is originally a society registered under the 1935 Act, having been converted into a Co-operative Swablambi Society under the 1996 Act, and is entitled to preference in comparison to the Petitioner which is registered from the inception under the 1996 Act. He relies on the departmental circular No. 1180, dt. 5.7.2000 (Annexure 3), which determines the order of preference to be given to the three kinds of co-operative societies with respect to distribution of Jalkars.

Learned Govt. Counsel has placed the counter affidavit before me and submits that the Petitioner co-operative society is comprised of 735 members. He next submits that an over-all picture of redistribution of Jalkars has to be done with respect to 93 Jalkars as a whole. He lastly submits that in view of absence of any stand taken in the counter affidavit, he is unable to make any submission with regard to the alleged default on the part of Respondent No. 5.

Learned Counsel for the Petitioner has submitted in reply that is the aforesaid circular dt. 5.7.2000 adverted to in the order dt. 15.3.2003 (Annexure 6) is taken to be in the teeth of Article 166 of the Constitution of India, then determination of the preference as per the departmental circular No. 1180 dt. 5.7.2000 (Annexure 3) similarly falls foul of Article 166 of the Constitution of India. In his submission, therefore, Respondent No. 5 is not entitled to any settlement.

I have perused the materials on record and considered the submissions of learned Counsel for the parties. The impugned order dt. 30.6.2003 (Annexure 10) has been passed on the footing that the Petitioner-society is comprised of 533 members, and Respondent No. 5 is comprised of 709 members. The Petitioner has stated in paragraph 25 of the writ petition that it is comprised of 735 members which is supported by the certificate dt. 1.6.2003 (Annexure 11), issued under the signature of Senior Auditor, Co-operative Societies Darbhanga. Respondent No. 4 (the District Fishery officer-cum-Chief Executive Officer, Darbhanga) has stated in paragraph-22 of his counter affidavit that the Petitioner society is comprised of 735 members and has affirmed the said certificate (Annexure 11).

Respondent No. 5 has answered this question in paragraphs-9 and 10 of its counter affidavit wherein it is, inter alia, stated that the audit report is collusive in nature and unreliable. Taking an over-all view of the picture, I must confess that the issue is not free from difficulties and essentially raises an issue of fact. Learned Counsel for the Petitioner is, however, right in his submission that the Departmental Secretary has passed the impugned order dt. 30.6.2003 (Annexure 10) without any opportunity to the Petitioner and had determined the strength of membership on his own. He also did not have the benefit of the aforesaid certificate dt. 1.6.2003 (Annexure-11). In view of the position that Respondent No. 4 has affirmed the certificate issued by the Auditor (Annexure 11), for the purpose of disposal of the present writ petition, I would prefer to rely on the same rather the strength indicated in the impugned order dt. 30.6.2003 (Annexure 10). I would, therefore, prefer the hold, for the limited purpose of disposal of the present petition, not without any amount of hesitation, that the Petitioner society is comprised of 735 members. In that view of the matter, the impugned orders dt. 30.6.2003 (Annexure 10), 7.7.2003 and 7.7.2003 (Annexure 1 and 2) suffer from an error apparent on the face of the record. The same are hereby modified to the extent that there shall be redistribution of the 93 Jalkars on the footing that the Petitioner society is comprised of 735 members, and Respondent No. 5 is comprised of 709 members. Let the re-allotment be done forthwith.

In that view of the matter, I do not feel the necessity of deciding the remaining questions raised by learned Counsel for the parties. In so far as the question of default is concerned, this Court has taken a firm and consistent stand in its earlier judgments that a party in default cannot be considered for any settlement. In case their application for remission is pending, then the Applicant shall deposit the entire amount of arrears which shall be subject to the result of the remission application, in order to be considered for settlement: In so far as the present case is concerned, the writ petition relies on the audit report dt. 17.12.2001 Annexure 13) wherein it is stated that Respondent No. 5 is in default to the extent of Rs. 53,160/- during the period of audit, namely, 1.4.99 to 31.3.2001. Respondent No. 5 has denied the same in paragraph 14 of the counter affidavit by stating as follows:

That with regard to the statement made in supplementary affidavit, it is humbly stated and submitted that the deponent society is not defaulter and as such the statement made in supplementary affidavit is absolutely false. It is relevant to point out here in this context that the deponent society has also deposited an amount of Rs. Twenty eight thousands five hundred and ninety (Rs. 28,590) on 8.9.2003 pursuant to letter No. 577 dated 16.8.2003.

According to Respondent No. 5, the amount of Rs. 28,590/- deposited on 8.9.2003 is towards the Reserve Jama for the settlement in question. In other words, according to Respondent No. 5, it has deposited the entire amount of arrears and has ceased to be in default. This Court does not take notice of the bald statement pt denial in paragraph 14 of the counter affidavit. Law is well settled that if an issue has been raised, then it becomes the duty of the party called upon to answer the same by placing appropriate materials before the Court to enable it to reach to its Own conclusion rather than confronting the Court with its conclusion bereft of the Materials. If that were not so, the powers M judicial review conferred on this Court Knocker the Constitution will be eroded, and fine concerned party will become the arbiter his own case. This is a common habit the governmental authorities, the agencies and the instrumentalities of the Government, and is unusual with private Respondents and has unfortunately been resorted to by Respondent No. 5 in the present case. I would, however, restrain myself from pronouncing a final view on the question whether or not Respondent No. 5 continues to be a defaulter, or has paid the dues after the audit report! for the reason that learned Counsel for Respondent No. 5 has, during the course of his submissions, placed before me photocopies of same of the money receipts which, in his submission, were in liquidation of the dues. This raises an issue of fact, not having been placed on record, as a result of which the other parties did not have the opportunity of meeting the same. I, therefore, leave this question for the decision of the Respondent authorities who shall take the same into account and pursue it to its logical conclusion in accordance with law.

There is one more reason for not adjudicating the remaining issues. Both sides have relied on a number of circulars and departmental instructions some of which are over-lapping, other seems to be mutually inconsistent, or seem to have fallen into desuetude, and also appear to be in the teeth of Article 166 of the Constitution of India. Whether or not an administrative instruction or departmental circular is enforceable which falls foul of Article 166 of the Constitution is a serious question which has got to be considered by the Respondent authorities carefully. Settlement of Jalkars and Hats, etc. are in a state of lawlessness in this State, being governed by the Circular Raj. It is for these reasons and various other reasons that this Court has been emphasizing for a legislation governing the issue of settlements, and this Court records it with deep regret that the State Government with ulterior motives is dithering over the matter. Such an irresponsible approach on the part of the State Government has caused a state of uncertainty for the sincere administrator and the contenders, and is resulting in most unwanted litigations in this Court. The Circular Raj must come to an end forthwith.

In the result, this writ petition is allowed, the impugned orders dated 30.6.2003 (Annexure 10), 7.7.2003 and 7.7.2003 (Annexure 1 and 2) are hereby modified to the extent that there shall be re-distribution of the Jalkars in question on the footing that the Petitioner society is comprised of 735 members, and Respondent No. 5 is comprised of 709 members.

Let a copy of this order be handed over to the learned AAG I to be forwarded to the Secretary, Department of Revenue & Land Reforms, Secretary of the Department of Animal Husbandry & Fisheries, and the Chief Secretary of the State Government, to bring to the attention of the State Government, the issue relating to the proposed legislation adverted to in Paragraph-9 hereinabove.