,,,
Reliefs Prayed and Submissions of the Petitioner,,,
1. The petitioner is looking for issuance of a writ in the nature of writ of certiorari to quash and cancel the impugned order dated 09.05.2020,,,
(Annexure ‘6’) passed by the respondent no. 3 by which the petitioner has been communicated that upon completion of the settlement period of,,,
the Fish-Seed Farm, on consideration and approval of the competent authority, it has been decided not to extend the period of settlement.",,,
2. The grievance of the petitioner is that pursuant to the advertisement as contained in Annexure ‘1’ published in the Newspaper on 16.09.2007,",,,
the petitioner had participated for selection as a Public-Private Partner (‘PPP’) to construct and run the Fish Seed hatchery on the fish seed,,,
farm under control of the Directorate of Fisheries, Government of Bihar. The Advertisement contained a provision for extension of settlement for",,,
another ten years on successful running of hatchery. While the selection of the petitioner was still under process, the Government of Bihar came out",,,
with a policy decision in the matter of running of a ‘fish seed hatchery’ in the fish seed farms. There was a clear promise in the notification,,,
dated 28th April, 2010 in tune with the advertisement (Annexure ‘1’) that on performance extension for another term of ten years shall be",,,
considered. In fact this term has been duly incorporated in the agreement dated 17.05.2010 registered on 22.05.2010 (Annexure ‘3’). According,,,
to the terms of Advertisement, notification and the agreement, on successful running of the Hatchery for 10 years, petitioner has to be considered for",,,
extension of another 10 years, therefore, it is submitted that at this stage the respondents cannot turn around to say that the competent authority has",,,
decided not to grant any extension.,,,
3. Learned counsel for the petitioner has vehemently submitted before this Court that the terms of Advertisement, policy decision of the Government",,,
as contained in the notification dated 28th April, 2010 and the agreement (Annexure ‘3’) would be binding upon the Government and the",,,
respondents cannot resile from the promises made to the petitioner as a partner under the deed dated 17.05.2010 (Annexure ‘3’) to consider,,,
him for extension of another 10 years if he successfully runs the Hatchery for the initial period of 10 years. It is his submission that the principle of,,,
‘promissory estoppel’ would come into play in the fact and circumstances of the present case. In order to buttress his point on the issue of,,,
‘promissory estoppel’, learned counsel for the petitioner has submitted that the petitioner has made investments and employed manpower and",,,
thereby changed his possession, if at this stage the Government resiles from its promise to consider the case of the petitioner, it will be detrimental to",,,
the petitioner.,,,
4. Learned counsel has submitted that in fact when similar writ applications came up for consideration before the learned Co-ordinate Bench of this,,,
Court in C.W.J.C. Nos. 6131 of 2020, 6132 of 2020 and 6133 of 2020, the policy decision of the Government as contained in the notification dated",,,
28th April, 2010 could not be brought to the notice of the learned Co-ordinate Benches and all the writ applications were considered without there",,,
being any response by way of counter affidavits from the respondents and the learned co-ordinate Bench took a view that the settlement with the,,,
petitioner(s) in those cases is a long term settlement of ‘Jalkar’ as envisaged under the Act of 2006 and such settlement cannot exceed ten,,,
years. It is because of this consideration that learned Co-ordinate Benches of this Court dealt with Sections 5 and 6 of the Act of 2006 alone and took,,,
a view that there is a bar to the period of settlement years and the long term settlement of Jalkars can be made for only 10 years and, therefore, the",,,
petitioners in the said cases have got no right under the law to claim for extension of the lease settlement in question.,,,
5. It is submitted that in fact the learned Co-ordinate Benches of this Court were not informed that this was not a case of long term settlement as,,,
envisaged under Section 6 of the Act of 2006. Attention of this Court has been drawn towards Section ‘6’ to submit that according to this,,,
provision a long term settlement of the Jalkars of water area up to 4 hectares shall be done only with trained fishermen/or trained fishermen self-help,,,
group selected by the Managing Committee. Whereas in the present case from Annexure ‘1’ it would appear that the advertisement was issued,,,
by the Directorate of Fisheries, Animal and Fish Resources Department, Bihar Patna for selection of a Public-Private Partner to run fish seed",,,
hatchery on the government fish seed farms located in different districts and under the control of the Directorate of Fisheries, Government of Bihar.",,,
The areas of these fish seed hatcheries may be found ranging from 0.10 to 15.56 acres. In his submissions these fish seed hatcheries were not open,,,
for settlement by the Collector / ‘Managing Committee’ under Section 6(i) of the Act of 2006. This is also not a settlement by Director in terms,,,
of Section 5(iii) of the Act of 2006. Section 5(iii) cannot be interpreted as a bar on the policy making power of the Government in it’s executive,,,
side. It nowehere contains any negative covenant so as to restrict the executive power of the Government to provide a scheme with an,,,
‘extension’ clause. Even though the advertisement (Annexure ‘1’) was issued on 16.09.2007, the same contained a provision for",,,
extension and before selection of partner the Government notified it’s policy for running the fish seed hatcheries on Fish Seed farms on Public-,,,
Private Partnership basis.,,,
6. It is submitted that the settlement on ‘PPP’ Mode and terms and conditions thereof would be governed by the notification dated 28th April,",,,
2010 which in fact contains the policy decision of the Government duly published in gazette in respect of these fish seed farms which are to be run on,,,
Public-Private Partnership basis. It is pointed out that the Management Committee under the Act of 2006 has no role to play in the settlement of these,,,
fish seed farms, therefore, section 5 and 6 of the Act of 2006 are not governing the selection of the Public-Private Partner.",,,
7. Learned counsel submits that under Section 5(ii) of the Act of 2006 as amended vide Amending Act, 2007 a long term settlement of ‘Jalkars’",,,
will be done after the approval of the Collector and Section 6(i) provides for selection by the “Managing Committeeâ€. On the face of the different,,,
procedures provided under the policy of the Government for selection of partner, there is no bar in providing for extension after initial period of ten",,,
years. The Act of 2006 no way creates a bar on the powers of the Government in coming with a policy decision to grant extension on fulfillment of,,,
the performance condition.,,,
8. It is submitted that in the present case selection of partner to construct and run the fish seed hatchery has been done and a registered agreement,,,
has been executed. The procedure for determination of minimum offer amount in case of fish seed hatchery is also differently provided. Thus, the",,,
whole concept of selection of Public-Private Partner is totally different from the Act of 2006 which are meant for short term and long term settlement,,,
of ‘Jalkars’.,,,
9. It is submitted that the term of ‘extension’ has a nexus with the object sought to be achieved by the Government in inviting individuals as an,,,
entrepreneur to participate in the economic activities which will generate employment as well by constructing and running the fish seed hatchery on,,,
Public-Private Partnership basis. In furtherance of those aims and objectives, if the government came out with the policy decision to allow the",,,
extension for another ten years in case of successful completion of initial ten years’ period, no statutory bar may be read on the power of the",,,
Government. The agreement (Annexure ‘3’) is thus, in tune with the policy of the Government. It is submitted that in fact under it’s",,,
industrial policy and several other policies the government invites entrepreneurs with various reliefs and concessions. The policy decisions are not to,,,
be interfered with by a court of law unless there is any statutory bar and it is against the public policy. It has been submitted that the settled proposition,,,
of law is that no Court shall create a contract for the parties which the parties have not chosen for themselves, howsoever good it may be.",,,
10. Taking a plea of promissory estoppel, learned counsel for the petitioner has relied upon a judgment of this Court in the case of Union of India and",,,
others vs. Indo-Afghan Agency Ltd. reported in AIR 1968 SC 718, Motilal Padampat Sugar Mills Co. Ltd vs. State of Uttar Pradesh and Ors.",,,
reported in AIR 1979 SC 621 and in the case of Kranti Associates Private Ltd. and Anr. vs. Masood Ahmad Khan and Ors. reported in (2010) 9,,,
SCC 496.,,,
11. Learned counsel for the petitioner has also relied upon a judgment of the Hon’ble Apex Court in the case of Provash Chandra Dalui and,,,
another v. Biswanath Banerjee and anr. reported in AIR 1989 Supreme Court 1834 to submit that this Court must construe the deed dated 17th May,,,
2010 (Annexure ‘3’) with reference to the policy decision contained in the notification dated 28th April 2010 and the advertisement seeking,,,
offer from the willing persons to invest in construction of the hatchery and run the same on Public-Private Partnership basis and the deed must be,,,
interpreted in the context and be read through the prism of a businessman’s eye. Reference has been made to its object and the entire terms and,,,
conditions as contained therein.,,,
12. It has been submitted that taking together all these documents, this Court may gather the intention of the parties while entering into the agreement",,,
and the consistent view be taken thereon by reading these documents as a whole. In the Advertisement (Annexure ‘1’), policy decision",,,
notification dated 28th April, 2010 and the deed dated 17th May, 2010 (Annexure ‘3’) it is clearly provided that on successful completion of ten",,,
years’ period the term of settlement may be extended for another ten years. It is submitted that the word ‘extension’ means enlargement,,,
and in this regard the distinction between ‘extension’ and ‘renewal’ as has been noticed by the Hon’ble Supreme Court in the case of,,,
Provash Chandra Dalui (supra) be kept in mind.,,,
13. In the aforesaid view of the matter, it has been submitted that earlier orders of the learned Co-ordinate Bench of this Court is not a binding",,,
precedent inasmuch as neither the notification dated 28th April, 2010 which contains the policy decision of the Government came for consideration",,,
before the learned Co-ordinate Bench of this Court nor it could be argued there that this case is not one of the long term settlement of the,,,
‘Jalkars’ as envisaged under Section 5 and 6 of the Act of 2006.,,,
14. Submissions have also been made assailing the impugned communication (Annexure ‘6’) but in the nature of the order proposed by this,,,
Court, this Court would briefly take note of those submissions at appropriate place.",,,
Stands of the Respondents,,,
15. On the other hand, Mr. Sajid Salim Khan, learned SC 25 has opposed the writ application with equal vehemence. Learned counsel has orally",,,
submitted that a long term settlement of lease can take place only for 10 years and referring to the entire paragraph ‘3’ of the notification dated,,,
28th April, 2010 learned counsel has made a statement that in no case the petitioner may be considered for extension of settlement without going for a",,,
fresh procedure as envisaged in paragraph ‘3(vii)’ to paragraph ‘3(xvi)’ of the notification. This has, however, not been specifically",,,
pleaded in the counter affidavit.,,,
16. Mr. Khan, learned SC 25 has agreed at the Bar and it has been taken note of by this Court in its order dated 23.09.2020 that the earlier orders",,,
passed by the learned Co-ordinate Benches of this Court do not deal with the notification dated 28th April, 2010 as the same was not brought to the",,,
notice of the learned Co-ordinate Benches of this Court. He has relied upon a judgment of the Hon’ble Supreme Court in the case of Bharti Airtel,,,
vs. Union of India reported in (2015) 12 SCC page 1 to submit that if there is any conflict in the provision of the Statue and the lease deed, it is the",,,
provision of the Statue which will prevail and not the lease deed. There is, however, no pleading in the counter affidavit that the relevant clause",,,
providing for extension of another term is against a statutory provision. He has submitted that the writ application is fit to be dismissed as there cannot,,,
be any consideration for extension of the settlement period.,,,
Consideration,,,
17. After hearing learned counsel for the parties and on perusal of the records, this Court at the outset must mention that in the counter affidavit filed",,,
on behalf of the respondents and sworn by the District Fishery Officer, Kaimur no plea has been taken that there cannot be any extension of",,,
settlement period beyond ten years. There is also no plea that Sections 5 and 6 of the Act of 2006 bar the extension of settlement period after ten,,,
years and further there is no plea that the stipulations made in the advertisement (Annexure 1) and the settlement deed (Annexure 3) providing for,,,
extension of the settlement period for another ten years is contrary to either any statutory provision or to any policy decision of the Government.,,,
18. In fact, a reading of the counter affidavit shows that in unequivocal terms the respondents have stated that there is a policy decision of the",,,
Government whereunder the farm in question which is under the control of the Directorate of Fisheries, Government of Bihar and has been settled for",,,
ten years under the PPP Mode for encouraging fish farming.,,,
19. Contention of the respondents in the counter affidavit is only to the extent that the further extension of settlement is totally discretionary in nature,,,
and the petitioner has no vested right to claim for further extension of the same. Therefore, this Court must put the records straight by saying that",,,
what has been orally contended by learned SC 25 at this stage is not the stand taken by the respondents in their counter affidavit.,,,
20. In the counter affidavit issues have been addressed on merit saying that a joint inspection report dated 26.02.2020 reveals that the petitioner has,,,
not maintained the fish hatchery up to mark in terms of the agreement, the same has been found in dilapidated condition, therefore, he has violated the",,,
terms and conditions of lease agreement and after considering the inspection report and request of the petitioner carefully, the competent authority did",,,
not find the same fit for extending the settlement for any further time. The petitioner has controverted these statements made in the counter affidavit,,,
as according to the petitioner, the impugned order (Annexure ‘6’) nowhere says so. There was no such allegation during the whole period and",,,
the report of the District Fishery Officer does not say so, therefore it has been contended on behalf of the petitioner that by making these statements",,,
in the counter affidavit, Annexure ‘6’ cannot be sustained. Annexure ‘6’ is quoted hereunder for a ready reference:-",,,
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21. To this Court, thus, it is very clear that the respondent nos. 2 to 4 are addressing the issues from a totally different angle, this Court wished to",,,
consider the issues on its own merit but for the objection taken by the learned SC 25 on the strength of the judgments of the learned co-ordinate,,,
Bench of this Court saying that there is a bar in the matter of extension of the terms of the settlement. Since this Court has been called upon to follow,,,
the same view and dismiss the writ application at the threshold, this Court has at this stage, stopped itself from going into the merit of the case by",,,
examining the decision making process in respect of the impugned order (Annexure ‘6’).,,,
22. In the given facts this Court is now required to first discuss the issue of statutory bar in extension of the settlement period as has been held by the,,,
learned co-ordinate Benches as in case this Court takes a view that there is no statutory bar in extension of the settlement period and it is a matter of,,,
policy decision which has been incorporated in the settlement deed dated 17.05.2010 (Annexure ‘3’), the issues arising thereof may be required",,,
to be referred to Hon’ble Division Bench of this Court. Thus, no further consideration may be given on the merit at this moment.",,,
23. For this purpose, this Court will have to go through the scheme of the Act of 2006, the terms of Advertisement (Annexure ‘1’), the",,,
notification dated 28th April, 2010 and the relevant terms of the deed dated 17.05.2010 (Annexure 3).",,,
24. For the purpose of a ready reference, the Court would reproduce the preamble, Sections 1, 2 (iii) (xiv), 3, 4, 5, 6, 14 and 15 of the Act of 2006 and",,,
its amendment hereunder:,,,
“Preamble :- Where are some discrepancies have been found in the implementation of new scheme of settlement of Jalkars under Bihar Jalkar,,,
Management Act-2006 and it is necessary to clarify some provisions of the Act and it is necessary to increase the production of qualitative fish,,,
production in Jalkars.â€,,,
Be it enacted by the Legislators of the Republic of India as follows:-,,,
1. Short title, extent and commencement - (i) This Act may be called the Bihar Jalkar Management (Amendment) Act, 2007. (ii) It shall extend to the",,,
whole of the state of Bihar. (iii) It shall come into force at once.,,,
2. (iii) “Jalkar†means Tank, Pokhar, Ahar, River, water course channel, ‘Chaur’, ‘Dhav, reservoir Lake, Ox-bow lake etc. under",,,
Department of Animal Husbandry and Fisheries, Bihar, in which Makhana, Singhara & fish is reared.",,,
(xiv) “Managing Committee†means the committee which is constituted, consisting of following members :-",,,
(a) Collector - Chairman,,,
(b) Deputy Development Commissioner - Vice â€" Chairman,,,
(c) Additional Collector - Member,,,
(d) Deputy Director Fisheries (Range) â€" Member,,,
(e) District Co-operative Officer â€" Member,,,
(f) Local District Lead Bank Officer â€" Member,,,
(g) A representative of a Fishermen - Member Co-operative Society nominated by Government,,,
(h) A representative of active Fishermen - Member nominated by the Government,,,
(i) District Fisheries Officer - Member Secretary,,,
2. Amendment in Section â€" 2 of Bihar Act 13, 2006 - The following amendments shall be made in Section-2 of the Bihar Jalkar Management Act",,,
2006:-,,,
(1) In Section 2(viii), the word “Professional†shall be substituted by the word “traditionalâ€.",,,
(2) In Section - 2(xii), the words “who is trained by Fisheries Department†shall be substituted by the words “trained by the Fisheries",,,
Department or fishermen having qualification of recognized courses in fisheries scienceâ€.,,,
(3) After Section (xiv) and 2(xv), the following notes shall be added:- “Note â€" (i) The term of representative of Fishermen Co- operative society",,,
and progressive fish farmers nominated shall be as fixed by the government or maximum period of five years.,,,
(ii) In case representative of Fishermen Co- operative Society or progressive fish farmers are not nominated by the government, the Collector may",,,
nominate two non-government members to take part in the meeting of Reserve Deposit Fixation Committee.,,,
(4) After clause (xv) of Section-2, the following two clauses shall be added-",,,
“(xvi) “Free jalkar†means the water area notified for free fishing by the government from time to time. (xvii) “Parta†means that Jalkar,,,
which has not been settled for any reason and that has been declared so by prescribed procedure in Section-11 of the Act.â€,,,
3. List of Jalkars and Classification :-,,,
(i) Block wise list of all Jalkars under Fisheries Directorate shall be compiled in the District Fisheries Office in which Panchayatwise, village-wise,",,,
name of Jalkars, Khatiyani area, watershed area, production and reserve deposits are mentioned.",,,
(ii) On the basis of water-shed area and production capacity of Jalkars, classification of Jalkars in three categories â€" Fine, medium and low-shall be",,,
made by District Fisheries Officer.,,,
3. Amendment in Section - 3 of Bihar Act 13, 2006 - The following amendment shall be made in Section -3:-",,,
(1) The following Proviso shall be added after Section-3(ii) of the said Act 2006 :-,,,
“Provided that the District Fisheries Officer shall public notice of proposed classification and invite objections on it and shall dispose them off within,,,
a month before making final classification.â€,,,
(2) The following new subsections (iii) and (iv) shall be added after subsection (ii) of section 3 of the said Act, 13, 2006:-",,,
“(iii) The state government may issue order in relation to the different categories of water-bodies as to whether they shall be classified as of Fine,,,
category, Medium category or Low category.",,,
(iv) The state government may review the order issued under (iii) above, on the basis of the potential of production based on possible scientific",,,
fisheries developmentâ€.,,,
4. Reserve Deposit :- (i) The reserve jama fixation committee shall assess annual production capacity of Jalkars after every five years evaluating the,,,
annual production data of all the Jalkars, placed by the District Fisheries Officer, which shall not be less than the production capacity of different type",,,
of Jalkars communicated every year, by Director Fisheries.",,,
Provided that the Director, Fisheries shall have the right to order for reevaluation of the annual production capacity of any Jalkar before the period of",,,
five years.,,,
(ii) The Reserve Deposit Fixation Committee will fix the Government selling price of different types of aqua- product, after every five years evaluating",,,
the data of the market selling rate of different types of aqua-product placed by the District Fisheries Officer.,,,
(iii)Reserve deposit amount of all Jalkars will be fixed by `Reserve Deposit Fixation Committee’ on the basis of fixed production capacity and,,,
selling price after five years. Provided that the annual reserve deposit amount of any Jalkar will not be more than 15% or less than 10% of the value,,,
of its annual production.,,,
(iv) The ‘Reserve Deposit Fixation Committee’ shall have the right to fix any percentage, which is not more than five percent, for the annual",,,
enhancement of Reserve Deposit amount. As per percentage fixed by the committee, fixation of Reserve Deposit amount in next four years will be",,,
fixed by the District Fisheries Officer.,,,
4. Amendment in Section â€" 4 of the Bihar Act, 13, 2006 - Original sub-section(iv) of section 4 of the said Act 13, 2006 shall be substituted by the",,,
Following :-,,,
“(iv) Quorum of Reserve Deposit Fixation Committee shall be by the presence of at least three members.,,,
5. Settlement :-,,,
(i) The short term settlement of Jalkars will be done for five settlement years after the approval of competent authority as mentioned in sub-section (ii),,,
of Section 7 of this Act.,,,
(ii) The long term settlement of Jalkars will be done for ten settlement years after the approval of the Collector.,,,
(iii)Not withstanding anything contrary contained in this Act, the Director Fisheries with the prior approval of Government, may settle such Jalkars",,,
which have been developed or are being developed or have been taken decision to be developed under any scheme of Government/Financial,,,
Institution/Bank for a maximum period of ten settlement years, with Fishermen Co-operative Society.",,,
5. Amendment in Section â€" 5 of the Bihar Act, 13, 2006 - The following amendments shall be made in Section-5:-",,,
(1) In subsection (iii) of Section 5 after the words “Fishermen Co-operative Society†the words “or other†shall be added.,,,
(2) After subsection (iii) of Section 5 of the said Act 13, 2006, a following new subsection (iv) shall be added :-",,,
“(iv) Settlement of Jalkars in the state is to be aimed at maximizing fish production and productivity scientifically and increase more and more,,,
avenues of employment for fisher folk.â€,,,
6. Long Term Settlement :-,,,
(i) A long term settlement of Jalkars of water area up to four hectares shall be done only with trained fishermen/ or trained fishermen self help group,,,
selected by the ‘Managing Committee’ .The long term settlement may be done of only those Jalkars which fulfill at least one of the following,,,
conditions :-,,,
(a) The Jalkar which has been declared Parta or is in the process of being declared Parta.,,,
(b) The Jalkar which has an average depth of less than four feet deep between 15th December to 15th January and there may be a possibility of,,,
perennial water retaining capacity by increasing its depth.,,,
(c) The Jalkar in which there is a possibility of increasing its water retaining capacity by developing embankments.,,,
(d) The Jalkar in which there is a possibility of increasing its water retention capacity upto 50% by making improvement in the water approach system,,,
of the Jalkar.,,,
(e) The Jalkar pertaining to which letter of consent is received from any financial institution, Bank or Government for financial assistance for its",,,
proper development.,,,
(ii) The information of date and place for the Long Term settlement of selected Jalkars shall be sent to the following by the registered post :,,,
(a) All fishermen Co-operative Societies under whose area of operation the Jalkar is situated.,,,
(b) The Mukhia of the concerned Panchayat.,,,
(c) The State Level Fishermen Co-operative Federation and,,,
(d) The Block Development Officer, Circle Officer, Divisional Deputy Director (Fisheries), Deputy Development Commissioner and Collector with a",,,
request to display it on the notice board of their offices.,,,
(iii) In the notice to be issued for settlement the name of Jalkar, full address, amount of Reserve deposit and period of settlement shall be mentioned.",,,
This notice shall be issued at least twenty one days before the date of settlement.,,,
(iv) The beneficiaries shall be selected by the ‘Managing Committee’ at the rate of one acre per fishermen member. A group leader will be,,,
nominated by the ‘Managing Committee’ in case more than one, beneficiaries are selected.",,,
(v) For long term settlement, the District Fisheries Officer shall receive applications only from those trained fishermen who are residents of the same",,,
Block in which the Jalkar is situated. If there are more than one trained applicant, the Jalkar shall be settled with fisherman or group of fishermen",,,
whose residence is nearest to the Jalkar.,,,
(vi) After settlement the Collector will create charge on the Jalkar for obtaining loan.,,,
(vii) The settlement with the beneficiaries shall be made with the following terms :- (a) It shall be compulsory to execute the registered agreement,",,,
within one month of the issue of the settlement order. Expenses incurred on registration shall be borne by the beneficiaries.,,,
(b) It shall be compulsory to deposit the total amount of reserve deposit of one year within 15 days of the issue of sanction order of the settlement.,,,
During the period of settlement, the total amount of reserve deposit of every year shall be deposited prior to 15th July.",,,
(c) It will be compulsory for the beneficiary to develop the Jalkar within 2 years from the date of issue of the settlement order.,,,
(d) In case of violation of any of the terms of settlement by the beneficiaries, the Collector may cancel the settlement but the beneficiary shall be",,,
given an opportunity to be heard before taking such a decision.,,,
6. Amendment in Section â€" 6 of the Bihar Act, 13, 2006 - The following clause (e) shall be added after clause (d) of subsection (vii) of section 6 of",,,
the said Act, 2006:-",,,
“(e) After cancellation of settlement for recovery of arrear amount Certificate case shall be filed by the District Fishery Officer and settlement of,,,
this Jalkar shall be made under Section 7.â€,,,
14. Appeal and Revision :-,,,
(i) An appeal against all decisions regarding short term settlement taken by District Fisheries Officer and Deputy Director may be filed before the,,,
Director Fisheries.,,,
(ii) An appeal against of all decisions taken by Collector and Director Fisheries may be filed in the Court of Departmental Commissioner.,,,
(iii) An appeal against all decisions regarding short term settlement taken by the government may be filed in the court of Member, Board of Revenue.",,,
(iv) Appeal may be filed within thirty days from the date of the original order. The appeal shall be disposed of within two months essentially after,,,
giving an opportunity of hearing to the parties concerned under the process fixed by the government. In the disposal of appeal, no interim order / stay",,,
order shall be passed. No investment shall be made in the disputed Jalkars by any party in the period of an appeal .,,,
15. Power to make Rules :- The State Government may by notification, make Rules for implementation of all or any of the provisions of this Act.â€",,,
Advertisement,,,
25. The advertisement dated 16.09.2007 as contained in Annexure ‘1’ to the writ application was issued inviting expressions of interest from,,,
willing parties to construct and to run fish seed hatcheries on the Govt. fish seed farms located in different districts on Public Private Partnership,,,
(PPP) basis. The advertisement specifically states that these fish seed farms are presently under the control of Directorate of Fisheries, Govt. of",,,
Bihar. So far as this Fish Seed Farm is concerned, it is known as Sisaura Ramgarh in the District of Rohtas and the area of this farm is 15.56 acres.",,,
After giving the description of different Fish Seed Farms, the advertisement (Annexure 1) lays down the following conditions:",,,
1. The hatchery shall be constructed and maintained by the concerned private partner from their own resources.,,,
2. The fish hatchery would be constructed by the private parties on the above mentioned farms on ‘as is where is’ basis. Details of assets,,,
available in each fish farm can be seen at the website of PRDA, Government of Bihar.",,,
3. The information regarding the status of fish farms can e obtained from Directorate of Fisheries Bihar, Patna as well as from District Fisheries",,,
Officer’s office of the district concerned.,,,
4. The fish hatchery should have an average capacity of producing 8-10 million hatchlings per year.,,,
5. The selected party shall be required to enter in an agreement to construct and run fish seed hatchery for 10 years.,,,
6. The selected party will be given one year grace period for construction of the hatchery.,,,
7. After ten years of successful operation an extension of another ten years may be considered on the basis of the performance.,,,
8. The party should submit offers in two separate envelopes-one envelop containing information regarding the technical capability of the party and the,,,
other containing financial offer of the party.,,,
9. The parties are expected to run it as a model fish hatchery in the state.,,,
10. The offer shall be evaluated by a committee duly constituted by the Govt. And the committee shall have the right to cancel or reject any offer,,,
without stating any reason.,,,
11. The party who has degree in fisheries Science along with an experience in fish culture & hatchery operation and sound financial position shall be,,,
given preference.,,,
12. The offer shall be decided from amongst those offers who qualify in technical bid on the basis of maximum revenue offered.,,,
13. Last date of receiving of offers 1.10.2007.,,,
14. Date of opening of offers 12.10.2007.â€,,,
Policy on running of Fish Seed Farms,,,
26. By way of notification dated 22nd April, 2010 published in the Bihar Extra Ordinary Gazette on 28th April, 2010 the Government of Bihar in its",,,
Animal and Fisheries Resource Department came out with a policy decision in the following terms. :,,,
,,,
“,,,
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Registered Agreement,,,
27. Thereafter, an agreement for settlement of Fish Seed Farm on Public Private Partnership was executed on 17.05.2010 (Annexure 3) paragraph",,,
nos. 1 to 18 of the lease deed which are the terms and conditions agreed between the petitioner on the one hand and the respondents on the other,,,
hand are reproduced hereunder for a ready reference:-,,,
“1. The hatchery shall be constructed and maintained by the concerned 2nd Party from his own resources.,,,
2. The fish hatchery should have minimum capacity of producing 8-10 million hatchlings per year.,,,
3.The 2nd Party may be given one year grace period for constructing of the hatchery.,,,
4. After ten years of successful operation an extension of another ten years may be considered on the basis of the performance.,,,
5. That 2nd Party is expected to run it as a model fish hatchery in the State.,,,
6. It shall be responsibility of the 2nd Party to protect the farm from any encroachment and fish & fish seed stocked at the farm.,,,
7. The 2nd Party shall have to carry out all the directions issued time to time by Ist party or his controlling officers for the proper maintenance of the,,,
farm and production of quality seed.,,,
8. The 2nd Party shall deposit the amount of annual offer on or before 30th June every year in one instalment.,,,
9. The 2nd Party shall maintain a record showing details of fish culture and induced breeding operations including use of inputs and it should be,,,
submitted for inspection as and when demanded.,,,
10. The 2nd Party shall submit a detailed plan for developing the fish seed farm into a model hatchery to the District Fisheries Officer concerned &,,,
the Director Fisheries within one month from this agreement. The Director Fisheries shall approve it in consultation with the concerned District,,,
Fisheries and the 2nd Party.,,,
11. The 2nd Party shall not use the fish seed farm & hatchery for any other commercial purpose.,,,
12. That the 2nd Party shall not transfer, assign, sublet or mortgage the farm or a part of it to any other person/persons or institution.",,,
13. That the 2nd Party shall not use poison or any insecticide for eradication of unwanted fish Mahua oil-cake may be used but prior permission would,,,
be mandatory.,,,
14. That the 2nd Party does not comply with the instructions of Director Fisheries or his sub-ordinate officers or violates any of the clause/clauses of,,,
the agreement or does not pay the amount or annual offer on time, the settlement shall be cancelled.",,,
15. The 2nd Party shall pay the electric charges consumed an all expenditures to be incurred upon the registration of the agreement.,,,
16. Breeding, culture and transportation of Thai Mangur and Big head (fish species) or any other banned species of fish officially informed to the Ist",,,
Party, shall remain prohibited.",,,
17. It shall be the duty of the 2nd Party to maintain a proper drainage for the excess water-discharge during hatchery operations.,,,
18. The department will give free technical consultancy as and when required.â€,,,
A glance over the Act of 2006 (As amended up-to-date),,,
28. The Bihar Fish Jalkar Management Act 2006 (hereinafter referred to as the Act of 2006) has been enacted with an object to provide provisions,,,
for settlement of ‘Jalkars’ relating to the Department of Animal Husbandry and Fisheries, Bihar Patna. For purpose of this case suffice is to",,,
note that the Act of 2006 provides for maintaining a list of all ‘Jalkars’ under the Directorate of Fisheries, Government of Bihar compiled in the",,,
district fisheries office in which panchayat-wise, village-wise, name of Jalkars, khatiyani area, watershed area, production and reserve deposits are",,,
mentioned. On the basis of watershed area the production capacity of Jalkars, classification of Jalkars in three categories- Fine, medium and low shall",,,
be made by District Fisheries Officer. A reserve jama fixation committee shall assess annual production capacity of Jalkar after every five years.,,,
29. By bringing Bihar Jalkar Management (Amendment) Act- 2007 (hereinafter referred to as the ‘Amending Act’) certain discrepancies in,,,
implementation of new scheme of settlement of Jalkars under the Act of 2006 were sought to be removed and certain provisions were clarified. The,,,
amendments brought in Sections 5, 6 and 7 of the Act of 2006, dealing with ‘Short Term’ and ‘Long Term’ settlements of Jalkars would",,,
be relevant to take note of for purpose of this Case.,,,
30. Section 5(i) talks of short term settlement. Section 5(ii) contains a provision for long term settlement of Jalkars for 10 settlement years after the,,,
approval of the Collector. The manner in which the settlements are to be made on long term basis are also provided under Section 6 of the Act of,,,
2006. According to this a long term settlement of jalkars of water area up to four hectares shall be done only with trained fishermen/or trained,,,
fishermen self-help group selected by the ‘Managing Committee’. The long term settlement may be done of only those Jalkars who fulfill at,,,
least one of the conditions mentioned in Section 6. The “Managing Committee†has been defined under Section 2(xiv) of the Act of 2006. (i),,,
Collector, (ii) Deputy Development Commissioner, (iii) Additional Collector, (iv) the Deputy Collector Fisheries (Range), (v) District Cooperative",,,
Officer, (vi) Local District Lead Bank Officer, (vii) a representative of a Fisherman Cooperative Society nominated by Government, (viii) a",,,
representative of active fishermen nominated by the Government and (ix) District Fisheries Officer constitute the Managing Committee. Collector is,,,
the Chairman whereas Deputy Development Commissioner is the Vice-Chairman of the Managing Committee.,,,
31. Under Section 5 (iii) power has been conferred upon the Director, Fisheries to settle such Jalkars which have been developed or are being",,,
developed or have been taken decision to be developed under any scheme of Government/Financial Institution/Bank for a maximum period of ten,,,
settlement years, with Fishermen Co-operative Society or other. Sub-section (iv) has been inserted under Section 5 providing for settlement of Jalkars",,,
to be aimed at Maximizing fish production and increase more avenues for employment. Decision by the Director, Fisheries should be taken with prior",,,
approval of the Government. Section 5 (iii) starts with a non-obstenti clause, therefore, it overrides Section 5(i) and 5 (ii) of the Act of 2006.",,,
32. Section 7 as existing in the Act of 2006 has been amended by the Amending Act 2007. Under Section 7(i) excluding the Selected Jalkars for Long,,,
Terms Settlement selected Jalkars under Section 5 and notified Jalkar for free fishing by the State Government. Short Term Settlement of all other,,,
Jalkars shall be made on Reserve Deposit amount with the non-defaulter Fishermen Co-operative Societies operating within the geographical area of,,,
the Block or to the members of disqualified fisherman co-operative societies. Accordingly, ‘authority’ for approval of Short Term Settlement",,,
are provided under Section 7(ii).,,,
33. Under Section 14 of the Act of 2006 an Appeal against all decisions regarding short term settlement taken by District Fisheries Officer and,,,
Deputy Director may be filed before the District Fisheries Officer and Deputy Director may be filed before the Director, Fisheries whereas an appeal",,,
against all the decisions taken by the Collector and Director fisheries may be filed in the Court of Departmental Commissioner.,,,
34. Section 15 is the rule making power whereunder the State may by notification, make rules for implementation of all or any of the provisions of the",,,
Act of 2006.,,,
35. In course of argument, however, no rule, if any, framed under Section 15 has been brought to the notice of this Court.",,,
Fish Seed Farm â€" Fish Seed hatchery policy,,,
36. By notification dated 22nd April, 2010 published in Bihar Extraordinary Gazette on 28th April, 2010 the Government of Bihar notified its policy",,,
decision to establish Fish Seed hatcheries in the Fish Seed Farms (eRL; cht iz{ks=ksa) under the control of Directorate of Fisheries, Government of",,,
Bihar on Public-Private Partnership basis. For purpose of analysis of data and evaluation and for the purpose of establishment of Fish Seed hatcheries,,,
a Committee has been constituted under the chairmanship of the Director Fisheries, Bihar Patna. The notification provides that the Committee shall",,,
make recommendations to the Government and after obtaining approval of the Government, in the prescribed form an agreement shall be executed",,,
with the Public-Private Partner. Detail procedures are also provided under the notification for selection of the Public-Private Partner and the manner,,,
in which offer is to be considered. One of the provisions under the notification lays down that the settlement of the Fish Seed hatcheries shall be done,,,
for 10 years and on successful operation of hatcheries for 10 years, on the request of the offerer consideration shall be given for extension of",,,
settlement for 10 years.,,,
37. It is evident from above conditions that terms of settlement of a Fish Seed Farm for fish seed hatchery are quite different and distinct from the,,,
term of settlement of ‘Jalkars’ under the Act of 2006 (as amended up-to-date). At the very beginning it says that a list of those Fish seed Farms,,,
which are to be provided on PPP Mode shall be prepared. The agreement further shows that there is participation of the Government. In this,,,
connection Clause ‘9’ of the agreement talks of use of inputs, Clause ‘11’ of the agreement talks of not using it for any other commercial",,,
purpose, Clause 18 says that department will give free consultancy. All these are in accordance with the policy of the Government. To this Court, it is",,,
crystal clear that the provisions relating to settlement of Jalkers on long term as envisaged under Sections 5 and 6 of the Act of 2006 would not be,,,
applicable in respect of settlement of Fish-Seed Farms. As noticed herein above under Section 5(ii) the long term settlement of Jalkars will be done for,,,
ten settlement years after the approval of Collector and under Section 5(iii) the Director, Fishery may in given cases of Jalkars go on for settlement",,,
with the approval of the Government for a maximum period of ten years. Under Section ‘6’ the long term settlement of Jalkar of water area up,,,
to 4 hectares shall be done only with trained fishermen/or trained fishermen self help group selected by the ‘Managing Committee’. The long,,,
term settlement under Section ‘6’ may be done of only those Jalkars which fulfill at least one of the conditions: (a) The Jalker which has been,,,
declared Parta or is in the process of being declared Parta; (b) The Jalkar which has an average depth of less than four feet deep between 15th,,,
December to 15th January and there may be possibility of perennial water retaining capacity by increasing its depth; (c) The Jalkar in which there is a,,,
possibility of increasing water retaining capacity by developing embankments; (d) The Jalkar in which there is a possibility of increasing its water,,,
retention capacity up to 50% by making improvement in the water approach system of the Jalkar and (e) The Jalkar pertaining to which letter of,,,
consent is received from any financial institution, Bank or Government for financial assistance for its proper development.",,,
38. It is very clear from these provisions that Sections 5 and 6 of the Act of 2006 talk of settlement of ‘Jalkars’ as defined under Section 2(iii),,,
of the Act of 2006 whereas policy decision of the Government as regards the Fish Seed Farms under the control of the Directorate which are to be,,,
run on Public-Private Partnership basis is altogether different. A separate list of such Farms is to be prepared. There is a different committee for that,,,
purpose who will analyze and evaluate the Fish Seed hatchery to be established, the said committee is to select the partner after following the",,,
procedures mentioned in the said notification and it mentions the minimum offer and basis thereof which has to be made by an offerer.,,,
39. This Court has no iota of doubt that the relationship of the petitioner as a partner with the respondents are to be found in terms of the policy,,,
decision of the Government, the advertisement and the lease deed entered into between the petitioner and the respondents on PPP Mode. The aim",,,
and object of the policy decision are well thought and the reason behind coming with such policy despite there being the Act of 2006 regulating the,,,
settlement of Jalkars on short term and long term basis are also very clear. To this Court, it appears that these are the matters of policy decision and in",,,
the given facts and circumstances of the case there is neither any challenge nor there is any question of throwing any challenge to the policy decision,,,
of the Government. In laying down policy decision in the matter of economic activities prescribing a provision for ‘extension’ cannot be said to,,,
be barred under Section 5 or 6 of the Act of 2006. There is no unreasonableness much less a case of wednesbury unreasonableness in prescribing,,,
such provision.,,,
40. In the case of Center For Public Interest Litigation v. Union of India and others reported in AIR 2016 Supreme Court 1777 the Hon’ble Apex,,,
Court has observed in paragraph ‘20’ and ‘21’ as under:-,,,
“20. Minimal interference is called for by the Courts, in exercise of judicial review of a Government policy when the said policy is the outcome of",,,
deliberations of the technical experts in the fields inasmuch as Courts are not well-equipped to fathom into such domain which is left to the discretion,,,
of the execution. It was beautifully explained by the Court in Narmada Bachao Andolan v. Union of India4. (2000) 10 SCC 664: (AIR) 2000 SC 3751,,,
and reiterated in Federation of Railway Officers Assn. v. Union of India5. (2003) 4 SCC 289 : (AIR) 2003 SC 1344 in the following words: “12. In,,,
examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or,,,
the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters",,,
affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless,,,
the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such",,,
matters.†“21. Limits of the judicial review were again reiterated, pointing out the same position by the Courts in England, in the case of G.",,,
Sundarrajan v. Union of India6. (2013) 6 SCC 620 : (AIR) 2013 SC (Supp.) 615, paras 11, 12, 13) in the following manner:",,,
15.1. Lord MacNaughten in Vacher and Sons Ltd. v. London Society of Compositors (1913 AC 107 : (1911-13) All ER Rep 241 (HL) has stated:,,,
“... Some people may think the policy of the Act unwise and even dangerous to the community. ... But a judicial tribunal has nothing to do with the,,,
policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the court, and its only duty, is to",,,
expound the language of the Act in accordance with the settled Rules of construction.â€,,,
15.2. In Council of Civil Service Unions v. Minister for the Civil Service (1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL), it was held",,,
that it is not for the courts to determine whether a particular policy or particular decision taken in fulfilment of that policy are fair. They are concerned,,,
only with the manner in which those decisions have been taken, if that manner is unfair, the decision will be tainted with what Lord Diplock labels as",,,
procedural impropriety"".",,,
15.3. This Court in M.P. Oil Extraction v. State of M.P. (1997) 7 SCC 592 :(AIR 1998 SC 145) held that unless the policy framed is absolutely,,,
capricious, unreasonable and arbitrary and based on mere ipse dixit of the executive authority or is invalid in constitutional or statutory mandate, court's",,,
interference is not called for.,,,
15.4. Reference may also be made of the judgments of this Court in Ugar Sugar Works Ltd. v. Delhi Admn. (2001) 3 SCC 635 : (AIR 2001 SC 1447),",,,
Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal (2007) 8 SCC 418 : (AIR 2007 SC (Supp) 1635) and Delhi Bar Assn. v. Union of India,,,
(2008) 13 SCC 628 :(AIR 2009 SC 693).,,,
15.5. We are, therefore, firmly of the opinion that we cannot sit in judgment over the decision taken by the Government of India, NPCIL, etc. for",,,
setting up of KKNPP at Kudankulam in view of the Indo-Russian Agreement.â€,,,
41. The principle of promissory estoppel as applied in India is no longer res integra. In the case of Indo-Afghan Agencies Ltd. (supra) it has been,,,
elaborately discussed by the Hon’le Apex Court in it’s judgment rendered in the case of Motilal Padampat Sugar Mills Co. Ltd. (supra) their,,,
lordships held :-,,,
“…………..It was thus laid down that a party who has, acting in reliance on a promise made by the Government, altered his position, is entitled to",,,
enforce the promise against the Government, even though the promise is not in the form of a formal contract as required by Article 299 and that",,,
Article does not militate against the applicability of the doctrine of promissory estoppel against the Government…..â€,,,
42. The other judgments on which reliance has been placed by learned counsel for the petitioner have discussed the doctrine of ‘Promissory,,,
estoppel’ and the crux of the judgments is that the doctrine of ‘Promissory estoppel’ or equitable estoppel is well established principles of,,,
administrative law, it is in the nature of principle evolved by equity to avoid injustice. Where a party of contract has by his word or his conduct made to",,,
the other party in unequivocal terms or representation by word of contract and other party acted upon on the basis of the such promise, assurance or",,,
representation and has altered his position to his detriment or his promise, the other party on whose promise the position has should not be permitted to",,,
resile from his promise.,,,
43. In the case of Chrisomar Corporation vs. MJR Steels Private Limited and Others reported in AIR 2017 SC 5530 while dealing with the principle of,,,
business efficacy, the Hon’ble Apex Court quoted a passage from the opinion of Bowen, L.J. in Moorcock [(1889) LR 14 PD 64 (CA)] has",,,
quoted. This Court wishes to reproduce the said passage as under:-,,,
“ ... In business transactions such as this, what the law desires to effect by the implication is to give such business efficacy to the transaction as",,,
must have been intended at all events by both parties who are businessmen; not to impose on one side all the perils of the transaction, or to emancipate",,,
one side from all the chances of failure, but to make each party promise in law as much, at all events, as it must have been in the contemplation of",,,
both parties that he should be responsible for in respect of those perils or chances.â€,,,
44. In the case of Chrisomar Corporation (supra) in the nature of disputes placed before the Hon’ble Apex Court, the Hon’ble Apex Court",,,
thought it just and proper to read the agreement through the prism of a businessman's eye (refer paragraph 42). The contract for a public private,,,
partnership is definitely in the nature of a commercial transaction between the petitioner and the respondents for the purpose it has been entered into,,,
and this Court finds no reason as to why the deed dated 17.05.2010 (Annexure-3) be not read through the prism of businessman’s eye.,,,
45. There are judicial pronouncements and one of them is in the case of Godhra Electricity Co. Ltd. and Ors. vs. The State of Gujarat and Ors.,,,
reported in AIR 1975 SC 32 wherein it has been held that it is the mutual understanding of the parties to a contract which determines the construction,,,
that the court will applies on it. In the opinion of this Court this principle squarely covers this case. Further the Hon’ble Apex Court has reiterated,,,
the view in several judicial pronouncements that the court cannot create a contract for the parties if they have not chosen those terms for themselves,",,,
howsoever good it may be.,,,
46. In the case of Ramana Dayaram Shetty vs. International Airport Authority of India and others reported in (1979) 3 SCC 489 the Hon’ble,,,
Apex Court held that the State cannot depart from the conditions mentioned in a tender document, on its own sweet will. In paragraph ‘7’ of the",,,
judgment their Lordship inter alia observed as under:-,,,
“…...It is a well settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the court should not",,,
be prompt to ascribe superfluity to the language of a document and should be rather at the outset inclined to suppose every word intended to have,,,
some effect or be of some use. To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on",,,
common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The,,,
court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce",,,
to silence any part of the document and make it altogether inapplicable…...â€,,,
47. In fact, as pointed out hereinabove, the State respondents in their counter affidavit have not taken a plea either that there is any statutory bar in",,,
giving extension of another ten years or that they are not ready to abide by the promise made under the policy decision as notified which finds,,,
mentioned in the lease deed of settlement on PPP Mode (Annexure 3). This Court has already found hereinabove that there is no statutory bar in the,,,
matter of giving extension to the settlement of the nature involved in the present case, this Court has dealt briefly with the principle of promissory",,,
estoppel only to strengthen its view that in absence of any statutory bar, there being a policy decision based on which a settlement has already taken",,,
place and the petitioner has changed his position by putting his men and money on the project, the principle of promissory estoppel would also operate",,,
against the respondents.,,,
48. The contention of learned SC 25 that in case of conflict between statutory provisions and the terms of lease deed, it is the provisions of statute",,,
which will prevail is the correct statement of law but this Court is of the considered opinion that the same would not be applicable in the facts of the,,,
present case. It is not the case of the respondents pleaded in the counter affidavit that the stipulation present in the lease deed is contrary to any,,,
statutory provisions governing the settlement of Fish Seed Farms of the Government on PPP Mode. It is also not the case of the State respondents,,,
that the advertisement and the subsequent deed executed with the petitioner are not in consonance with the policy decision contained in the notification,,,
dated 28th April, 2010. It is rather the case of the respondents that the present settlement is pursuant to the policy decision of the Government. (See",,,
paragraph 8 & 9 of the counter affidavit of Respondent No. 2 and Respondent No. 4). This Court is afraid that oral submissions on behalf of the State,,,
have been made against the policy of the Government but not based on pleadings.,,,
49. In the case of Provash Chandra Dalui (supra) the Hon’ble Supreme Court has dealt with the distinction between the word ‘extension’,,,
and ‘renewal’. Paragraph ‘12’ thereof are reproduced hereunder:,,,
“12. It is pertinent to note that the word used is 'extension' and not 'renewal'. To extend means to enlarge, expand, lengthen, prolong, to carry out",,,
further than its original limit. Extension, according to Black's Law Dictionary, means enlargement of the main body; addition of something smaller than",,,
that to which it is attached; to lengthen or prolong. Thus extension ordinarily implies the continued existence of something to be extended. The,,,
distinction between 'extension' and 'renewal' is chiefly that in the case of renewal, a new lease is required, while in the case of extension the same",,,
lease continues in force during additional period by the performance of the stipulated act, In other words, the word 'extension' when used in its proper",,,
and usual sense in connection with a lease means a prolongation of the lease. Construction of this stipulation in the lease in the above manner will also,,,
be consistent when the lease is taken as a whole. The purposes of the lease were not expected to last for only 10 years and as Mr. A. K. Sen rightly,,,
pointed out the schedule specifically mentioned the lease as ""for a stipulated period of twenty years.""",,,
As these words are very clear, there is very little for the Court to do about it.â€",,,
50. In the present case the word ‘extension’ has been used everywhere. Therefore, intention of the Government has been very clear that",,,
where an offerer in terms of paragraph ‘3’ of the notification dated 28th April, 2010 has been selected for a period of 10 years and has",,,
successfully run the Fish Seed Farm for ten years the said offerer will be considered for extension meaning hereby that in such circumstance the,,,
settlement will be prolonged for another period of ten years.,,,
51. This Court, thus, with utmost respect and humility to the orders passed by the learned co-ordinate Bench of this Court regrets it’s inability to",,,
agree with the view taken by the learned co-ordinate Bench of this Court in C.W.J.C. No. 6132 of 2020. The operating part of which reads as under:-,,,
“Thus, this Court had asked the learned counsel appearing for the petitioner that since the aforesaid Bihar Fish Jalkar Management Act, 2006",,,
provides for long term settlement of Jalkars only for 10 settlement years and as far as the petitioner is concerned, the period of 10 settlement years is",,,
already over, then how the petitioner can claim, as a matter of right, for extension of the said lease agreement dated 28.06.2010, to which the learned",,,
counsel for the petitioner had no legal answer, however, instead, he has submitted that the lease in question dated 28.6.2010 provides that in case the",,,
petitioner operates for 10 years successfully, extension for another 10 years may be considered on the basis of his performance. At this juncture itself",,,
it would suffice to state that Obedience of the fiat of the Law of the State is an essential ingredient of public policy. Any agreement/lease which does,,,
not obey the command of Law and is opposed to public policy, is therefore, void. Courts of law cannot countenance such an agreement/lease.",,,
The learned counsel for the Respondents State has submitted that as per the provisions of the Bihar Fish Jalkar Management Act, 2006, long term",,,
settlement cannot be for more than 10 years, hence, the petitioner has got no right to claim extension of the lease agreement in question.",,,
Having heard the learned counsel for the parties, considering the submissions made by them and taking into account the materials available on record",,,
as also the provisions of the Bihar Fish Jalkar Management Act, 2006, this Court is of the view that since there is a bar to the period of settlement",,,
years and a long time settlement of Jalkars can only be made for 10 settlement years, the petitioner has got no right under the law to claim for",,,
extension of the said lease in question dated 28.6.2010, hence, admittedly, the present writ petition is bereft of any merit, thus, the same stands",,,
dismissed.â€,,,
52. In C.W.J.C. No.6131 of 2020 the another learned co-ordinate Bench of this Court followed the view taken in C.W.J.C. No. 6132 of 2020 and has,,,
observed in paragraph ‘9’ of the order dated 26.08.2020 as under:,,,
“9. Thus, even if it is assumed, for the sake of argument, that the agreement incorporated a clause where there was a provision for renewal, the",,,
same would not override the provisions of the Act and would not create a right in favour of the petitioner and an obligation on the authorities to extend,,,
the period of settlement. Further, there is nothing in the Act to bar a settlee from again participating in the fresh settlement process, which has to be",,,
considered on its own merits, but the extension of the previous settlement in favour of the petitioner, by way of a further extension, not being",,,
permissible under the Act, the petitioner cannot be granted such extension by the authorities. Thus, the action of the authorities cannot be faulted.â€",,,
53. It is an admitted position that the policy decision of the Government as contained in Notification dated 28th April, 2010 was not placed before the",,,
learned co-ordinate Benches of this Court but because this Court finds that the judgment rendered by another equal strength of the Bench clearly,,,
declares that there is a bar in extension of the settlement beyond ten years and the same is not permissible under the Act of 2006, whereas this Court",,,
is of the view that not only the Act of 2006 would not be applicable in the present case but also that there is no provision under the Act of 2006 which,,,
may be read as a bar in providing for an ‘extension’ under a policy decision of the Government as it relates to a settlement of Fish Seed Farms,,,
directly under the control of the Directorate of Fisheries on Public Private Partnership mode for which special procedures are provided and the same,,,
will be governed by the policy decision of the Government as contained in the Notification dated 28th April, 2010, this issue needs to be referred to",,,
Hon’ble Division Bench of this Court. The issues formulated for consideration by the Hon’ble Division Bench of this Court may be enlisted as,,,
under:-,,,
(i) Whether the Act of 2006 would be applicable in respect of the settlement of Fish Seed Farms under the Control of the Directorate of Fisheries,",,,
Government of Bihar. If yes,",,,
(ii) Whether the notification dated 28th April, 2010 which is in the form of policy decision of the Government with respect to the norms and procedures",,,
to be followed in the matter of selection of the public private partner under the PPP Mode for establishing and running a Fish seed hatchery on a Fish,,,
seed farm under the control of the Directorate of Fisheries, Government of Bihar is in teeth of the Act of 2006 (As amended up-to-date).",,,
(iii) Whether any statutory bar may be read or inferred under the provisions of the Act of 2006 on the power of the Government in the matter of giving,,,
extension to an another term of ten years to the Public Private Partner who has been selected in accordance with the Government’s policy to,,,
construct and run the Fish Seed Farm under PPP Mode on successful running of the Fish seed hatchery.,,,
(iv) Whether the advertisement (Annexure ‘1’) and the deed dated 17.05.2010 (Annexure ‘3’) containing a provision for extension of,,,
settlement in question for another period of ten years in case of successful running of the Fish-Seed Hatchery for initial ten years period by the,,,
selected offerer/beneficiary would attract the principle of ‘Promissory estoppel’ and the respondents would be obliged to abide by the terms and,,,
conditions of the deed dated 17.05.2010 (Annexure ‘3’).,,,
54. The decision making process followed by the respondents and the discretion applied by them in not giving an extension for ten years to the,,,
petitioner even as the petitioner claims that the communication contained in Annexure ‘6’ to the writ application does not contain the reasons,,,
sought to be pleaded in the counter affidavit may be examined by this Court only if an occasion so arises after the aforesaid issues are decided by the,,,
Hon’ble Division Bench of this Court.,,,
55. Let this case be referred to the Hon’ble Division Bench for answering the aforesaid issues. The file will be placed before Hon’ble the,,,
Chief Justice for listing before appropriate Bench.,,,
56. The interim order, if any, shall continue till next hearing of the matter before the Hon’ble Division Bench.",,,
