Late Bhaurao Markad Matshya ... vs The State Of Maharashtra Thr Its ...
2021 Latest Caselaw 16411 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO.4071 OF 2021

Late Bhaurao Markad Matshya
Vyavasayeek Sahakari Sanstha Mrayadit,
Songiri, Tq. Bhoom, Dist. Osmanabad,
through its Chairman namely
Bhausaheb s/o Bhaskar Markad,
Age : 35 years, Occu. Fishery,
R/o Songiri, Tq. Bhoom,
District Osmanabad                                              PETITIONER

       VERSUS

1.     The State of Maharashtra,
       through its Secretary,
       Agri., Animal Husbandry, Dairy
       Development and Fishery Department,
       Mantralaya, Mumbai

2.     The Commissioner of Fishery
       and Additional Registrar,
       Cooperative Societies (Fishery),
       Maharashtra State, Mumbai,
       Taraporwala Matshalaya,
       Netaji Subhash Road,
       Charni Road, Mumbai

3.     The Deputy Registrar,
       Cooperative Societies (Fishery),
       Maharashtra State, Mumbai,
       Taraporwala Matshyalaya,
       Netaji Subhash Road,
       Charni Road, Mumbai

4.     The Regional Deputy Commissioner
       of Fishery, Latur, Latur Region,
       Latur, Old Collector Office premises,
       Administrative Building, 2nd Floor,
       Latur

5.     The Assistant Commissioner of
       Fishery, Osmanabad,
       Central Administrative Building,
       1st Floor, Osmanabad


     ::: Uploaded on - 27/11/2021                ::: Downloaded on - 28/11/2021 03:16:00 :::
                                           2        wp4071-4820-2021.odt


6.     The Fishery Development Officer,
       Osmanabad, Tq. & Dist. Osmanabad

7.     The Assistant Registrar
       Cooperative Societies (Dairy),
       Osmanabad, Sathe Chowk,
       Tuljapur Road, Osmanabad,
       Tq. and District Osmanabad

8.     Proposed Tuljabhavani Matshya
       Vyavasayeek Sahakari Sanstha Maryadit,
       Songiri, Tq. Bhoom, Dist. Osmanabad,
       through its Chief Promoter namely
       Siddheshwar s/o Somnath Kute,
       Age : 46 years, Occu. Agril.,
       R/o Songiri, Tq. Bhoom,
       District Osmanabad                                      RESPONDENTS
                                     AND

                          WRIT PETITION NO.4820 OF 2021

Late Bhaurao Markad Matshya
Vyavasayeek Sahakari Sanstha Maryadit,
Songiri, Tq. Bhoom, Dist. Osmanabad
through its Chairman namely,
Bhausaheb s/o Bhaaskar Markad,
Age : 35 years, Occu. Fishery,
R/o Songiri, Tq. Bhoom,
District Osmanabad                                             PETITIONER

       VERSUS

1.     The State of Maharashtra,
       through its Secretary,
       Agri., Animal Husbandry, Dairy
       Development and Fishery Department,
       Mantralaya, Mumbai

2.     The Commissioner of Fishery
       and Additional Registrar,
       Cooperative Societies (Fishery),
       Maharashtra State, Mumbai,
       Taraporwala Matshalaya,
       Netaji Subhash Road,
       Charni Road, Mumbai


     ::: Uploaded on - 27/11/2021                ::: Downloaded on - 28/11/2021 03:16:00 :::
                                           3        wp4071-4820-2021.odt


3.     The Deputy Registrar,
       Cooperative Societies (Fishery),
       Maharashtra State, Mumbai,
       Taraporwala Matshyalaya,
       Netaji Subhash Road,
       Charni Road, Mumbai

4.     The Regional Deputy Commissioner
       of Fishery, Latur, Latur Region,
       Latur, Old Collector Office premises,
       Administrative Building, 2nd Floor,
       Latur

5.     The Assistant Commissioner of
       Fishery, Osmanabad,
       Central Administrative Building,
       1st Floor, Osmanabad

6.     The Fishery Development Officer,
       Osmanabad, Tq. & Dist. Osmanabad

7.     The Assistant Registrar
       Cooperative Societies (Dairy),
       Osmanabad, Sathe Chowk,
       Tuljapur Road, Osmanabad,
       Tq. and District Osmanabad

8.     Proposed Om Raje Nimbalkar Matshya
       Vyavasayeek Sahakari Sanstha Maryadit,
       Songiri, Tq. Bhoom, Dist. Osmanabad,
       through its Chief Promoter namely
       Yuvraj s/o Tatya Kute,
       Age : 25 years, occu. Agril.,
       R/o Songiri, Tq. Bhoom,
       District Osmanabad                                      RESPONDENTS

                                     WITH

                       CIVIL APPLICATION NO.11813 OF 2021
                                       IN
                         WRIT PETITION NO.4071 OF 2021

Jay Malhar Matsya Vyavsaya Sahakari Sanstha
Maryadit, Songiri, through its Secretary
Kundlik s/o Abhiman Goyakar,


     ::: Uploaded on - 27/11/2021                ::: Downloaded on - 28/11/2021 03:16:00 :::
                                           4       wp4071-4820-2021.odt
Age : 26 years, Occu. Fisherman,
R/o Songiri, Tq. Bhoom, Dist. Osmanabad                            APPLICANT

       VERSUS

1.     Late Bhaurao Markad Matshya
       Vyavasayeek Sahakari Sanstha Mrayadit,
       Songiri, Tq. Bhoom, Dist. Osmanabad,
       through its Chairman namely
       Bhausaheb s/o Bhaskar Markad,
       Age : 35 years, Occu. Fishery,
       R/o Songiri, Tq. Bhoom,
       District Osmanabad

2.     The State of Maharashtra,
       through its Secretary,
       Agri., Animal Husbandry, Dairy
       Development and Fishery Department,
       Mantralaya, Mumbai

3.     The Commissioner of Fishery
       and Additional Registrar,
       Cooperative Societies (Fishery),
       Maharashtra State, Mumbai,
       Taraporwala Matshalaya,
       Netaji Subhash Road,
       Charni Road, Mumbai

4.     The Deputy Registrar,
       Cooperative Societies (Fishery),
       Maharashtra State, Mumbai,
       Taraporwala Matshyalaya,
       Netaji Subhash Road,
       Charni Road, Mumbai

5.     The Regional Deputy Commissioner
       of Fishery, Latur, Latur Region,
       Latur, Old Collector Office premises,
       Administrative Building, 2nd Floor,
       Latur

6.     The Assistant Commissioner of
       Fishery, Osmanabad,
       Central Administrative Building,
       1st Floor, Osmanabad



     ::: Uploaded on - 27/11/2021               ::: Downloaded on - 28/11/2021 03:16:00 :::
                                          5            wp4071-4820-2021.odt
7.     The Fishery Development Officer,
       Osmanabad, Tq. & Dist. Osmanabad

8.     The Assistant Registrar
       Cooperative Societies (Dairy),
       Osmanabad,
       Tq. and District Osmanabad

9.    Proposed Om Raje Nimbalkar Matshya
      Vyavasayeek Sahakari Sanstha Maryadit,
      Songiri, Tq. Bhoom, Dist. Osmanabad,
      through its Chief Promoter namely
      Yuvraj s/o Tatya Kute,
      Age : 25 years, occu. Agril.,
      R/o Songiri, Tq. Bhoom,
      District Osmanabad                                        RESPONDENTS
                                      .....
Mr. A.N. Nagargoje, Advocate for the petitioner
in both writ petitions
Mr. K.B. Jadhavar, A.G.P. for respondent Nos.1 to 7
Mr. A.B. Girase, Advocate for respondent No. 8
in both writ petitions
Mr. Manoj U. Shelke, Advocate for the applicant
                                     .....

                                    CORAM :   MANGESH S. PATIL, J.

                DATE OF JUDGMENT RESERVED   :               24.11.2021
                DATE OF JUDGMENT PRONOUNCED :               26.11.2021


COMMON JUDGMENT :

Though the petitioners in both these writ petitions are

different and even respondent No.8 are different entities, since common

questions based on similar facts leading to the passing of the impugned

orders, which are also similar, the matters are being decided by this

common judgment.

2. Heard.

                                        6           wp4071-4820-2021.odt


3.              Rule. The Rule is made returnable forthwith.        The learned

A.G.P. waives service on behalf of respondent Nos.1 to 7 whereas learned

Advocate Mr. A.B. Girase waives service for respondent No.8 in both the

writ petitions. I have also heard learned Advocate Mr. M.U. Shelke on Civil

Application No.11813/2021, seeking to intervene. At their joint request,

the matters are heard and being disposed of finally at the stage of

admission.

4. The petitioners, seeking their registration as a fisheries

societies under Section 9 read with Section 4 of the Maharashtra

Cooperative Societies Act, 1960 ("the Act", for short), are taking exception

to the orders passed by the Commissioner of Fisheries, Maharashtra State,

Mumbai of the same date i.e. 25.01.2021 whereby the order of the

Assistant Registrar of Cooperative Societies dated 23.11.2020, directing

registration of the petitioner Societies, has been quashed and set aside,

simultaneously quashing and setting aside the registration certificate

granted by the Deputy Registrar (respondent No.3) dated 16.09.2020 and

cancelling no objection certificate issued by the Assistant Commissioner

(respondent No.5) dated 10.09.2020 on the basis of which eventually the

petitioners were duly registered as fisheries societies for the respective

water bodies.

5. The main bone of contention of learned Advocate Mr. A.N.

Nagargoje for the petitioners is that Government Resolution dated

7 wp4071-4820-2021.odt 03.07.2019 of the State Government lays down the guidelines for grant of

registration to the fisheries societies. After following due procedure and

the guidelines, the petitioner societies were duly registered.

Simultaneously, even respondent Nos.8 in both these petitions had also

applied for registration as fisheries societies in respect of the same water

bodies. They were refused such registration as they were not complying

with prerequisites as laid down in the guidelines contained in Govt.

Resolution dated 03.07.2019. Without there being any challenge to the

orders refusing such registration by preferring an appeal under Section 152

of the Act, the respondent Nos.8 have simply challenged the orders of

registration of the petitioners. They have no locus standi and still, by the

impugned orders, the revision under Section 152 has been allowed and the

matter has been remanded for decision afresh.

6. Mr. Nagargoje, learned Advocate would further point out that

the impugned orders are not orders in the eye of law. By mere

reproduction of the rival contentions, the operative order has been passed.

Those are sans any reason much less justifying the conclusion. The orders

are perverse, arbitrary and illegal.

7. Learned Advocate Mr. Nagargoje would submit that the

petitioner societies have already spent huge amount for seeding and would

be put to a great loss and inconvenience if the matter is allowed to be

reheard.

8 wp4071-4820-2021.odt

8. Mr. Nagargoje, lastly, submitted that the impugned decisions

have been taken under political pressure. Even while the impugned orders

directing remand have been passed, the selfsame Commissioner

(respondent No.2) has now, by his communication dated 24.09.2021,

called upon the lower authorities to initiate a process for considering the

requests of respondent Nos.8 for registration. This attempt on the part of

respondent No.2 (Commissioner) is highly objectionable and clearly

demonstrates mala fides.

9. The learned A.G.P. and learned Advocate Mr. A.B. Girase for

respondent Nos.8 would strenuously submit that without there being

sufficient compliance with the guidelines dated 03.07.2019, at the behest

of politicians, the selfsame fisheries officer, who was holding the charge as

Assistant Registrar, Divisional Joint Registrar and Assistant Commissioner

of Fisheries, has shown undesired haste and promptness and has facilitated

registration of the petitioner societies within a span of few days under his

own signature in different capacities. Having indulged in such illegalities

and misconduct, the officer has even subsequently been suspended.

10. The learned A.G.P. and learned Advocate Mr. Girase would

further submit that though the proposals of respondent Nos.8 and few

other societies for the selfsame water bodies were pending and some of

which were even filed before the petitioners' proposals, the decision was

taken in respect of the petitioners hastily, with mala fide intention to

9 wp4071-4820-2021.odt deprive the other societies from being registered. By referring to the

guidelines dated 03.07.2019, they would further point out that only one

society can be registered in respect of one water body and that is why the

petitioners got their societies registered. In fact, that is the ground on the

basis of which registration of respondent No.8 in writ petition

No.4820/2021 has been refused.

11. The learned A.G.P. and learned Advocate Mr. Girase would

then submit that going by the definition of an `active fisherman' laid down

in the guidelines dated 03.07.2019, a person who is exclusively dependent

on the fishing and allied activities is considered to be an active fisherman.

As per entry 1.5 of clause (A) of guideline No.1, a society can be registered

only if there are atleast 25 active fishermen as members. They would

submit that the petitioners' application for registration clearly indicates

that their occupation is agriculture and fishing, meaning thereby that they

are not active fishermen and their societies could not have been registered

legally.

12. Learned A.G.P. and learned Advocate Mr. Girase would lastly

submit that though the impugned orders of respondent No.2 -

Commissioner do not disclose all these grounds, these were the facts,

which had weighed with him and he has simply remanded the matters for

decision afresh. No prejudice is likely to be caused to the petitioners.

They would get an opportunity of being heard and the petitions be

10 wp4071-4820-2021.odt dismissed.

13. Learned Advocate Mr. M.U. Shelke for the intervener would

adopt the arguments advanced by the learned A.G.P. and learned Advocate

Mr. A.B. Girase. In addition, he would submit that factually incorrect

statement has been made in writ petition No.4820/2021 to the effect that

the intervener society had preferred an appeal challenging the order

refusing its registration but it was dismissed. In fact, its appeal was

allowed. The petitioner is seeking discretionary relief while invoking writ

jurisdiction of this Court and still, has made such incorrect statement in the

petition and therefore, for this reason also, the petition is liable to be

dismissed.

14. I have carefully considered the rival submissions and perused

the papers. Except the fact that there is an inconsistent stand as regards

the decision in the appeal of the intervener, which, according to the

petitioners was dismissed but according to the intervener, was allowed,

there is no dispute as to the happenings discussed hereinabove.

15. It is a common ground that eligibility of a proposal for

registration as a fisheris society under Section 9 read with Section 4 of the

Act is governed by the guidelines dated 03.07.2019. It is one of the

prerequisites as laid down in entry No.1.5 of clause (A) of guideline No.1

that the proposed society should have at least 25 active fishermen as

members. The term `active fisherman' has also been specifically defined to

11 wp4071-4820-2021.odt mean that a person who actually engages himself in fishing or allied

activity and his livelihood is wholly dependent on such a vocation. The

proposals of the petitioners indicate the occupation of their members as

agriculture and fishing. If such was the state-of-affair, prima facie, the

petitioners were not entitled to be registered as fisheries societies.

16. Ofcourse, it is a matter for the concerned authority to take a

decision, now that the matter has been remanded to it for the decisions

afresh. The fact remains that it is a vital fact, which does not seem to have

been considered while granting registration to the petitioner societies.

17. Again, there is enough material on the record to demonstrate

that the proposals of not only the petitioners but few other proposed

societies were also pending and awaiting decision, some of which were

filed before the proposals of the petitioners were moved. As can be seen,

the selfsame officer, holding different charges, was bold enough to submit

a report regarding practical examination regarding skills of fishing, putting

up a proposal, granting no objection and issuing certificate of registration

under his own signature within a span of few days. Irrespective of the fact

that the learned A.G.P. now makes a statement that the officer has

subsequently been suspended, the very conduct demonstrates that though

he was vested with a power which he was expected to exercise judiciously,

when there were rival claims for registration by the proposed societies, he

has apparently acted in a biased manner.

12 wp4071-4820-2021.odt

18. There is also material on record to demonstrate that certain

people's representatives had put up recommendations to the same person

requesting for considering the proposals of the petitioners favourably. If

such is the state-of-affair, I find no hesitation in reaching to a conclusion

that necessary objective scrutiny before granting registration to the

petitioner societies was not undertaken.

19. True it is that in the impugned orders, respondent No.2 -

Commissioner has no-where discussed all these facts and circumstances

and the orders are sans any semblance of reasons. But then the petitioners

have called upon this Court to exercise a discretion under the writ

jurisdiction. If the facts and circumstances discussed hereinabove are

startling enough to demonstrate the illegalities in granting registration, the

impugned orders, which merely seek to remand the matters for decision

afresh, would rather be innocuous. The petitioners would certainly get

sufficient opportunity to prosecute their proposal and establish their

entitlement within the four corners of the guidelines dated 03.07.2019. In

view of such peculiar state-of-affair, the writ petitions are liable to be

dismissed.

20. The Writ Petitions are dismissed. It is made clear that the

observations made hereinabove are confined to the decision of the present

writ petitions and the authorities shall not feel influenced by those while

taking the decision pursuant to the impugned orders.

13 wp4071-4820-2021.odt

21. The authority to whom the matters have now been remanded

shall take a decision on the proposals by following the due process within a

period of four weeks from today.

22. The Rule is discharged.

23. The civil application is disposed of.

[MANGESH S. PATIL] JUDGE

24. After pronouncement of judgement, a request is made on

behalf of the petitioner societies that the respective petitioners may be

allowed to harvest the fish from the water bodies as they have already put

the seeds.

25. The learned Advocates for the contesting respondents oppose

the request.

26. Having considered the nature of the dispute and the fact that

the petitioners have made an attempt towards undertaking the activity of

fishing by releasing seeds, interest of justice would be met if they are

allowed to harvest. The request is accepted, however, such activity shall be

completed within two weeks from today.

14 wp4071-4820-2021.odt

27. The parties to act upon the authenticated copy of this order.

[MANGESH S. PATIL] JUDGE

npj/wp4071-4820-2021.odt