Md. Monirul Islam Vs. Bijoy Halder and others, 3 LNJ AD (2014) 30

Case No: CIVIL PETITION FOR LEAVE TO APPEAL No. 355 OF 2012

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mohammad Ali,Abdul Wadud Bhuiyan,,

Citation: 3 LNJ AD (2014) 30

Case Year: 2014

Appellant: Md. Monirul Islam

Respondent: Bijoy Halder and others

Subject: Writ Petition,

Delivery Date: --


APPELLATE DIVISION
(CIVIL)
 
Nazmun Ara Sultana, J.
Muhammad Imman Ali, J.
Mohammad Anwarul Haque, J.
Hasan Foez Siddique, J.
  Md. Monirul Islam
....Appellants.
-Vs-
Bijoy Halder, President Lohalamari Matshajibi Samabaya Samity Ltd. and others
....Respondents
 
Constitution of Bangladesh, 1972
Article 102
It appears that the High Court Division rightly ordered recission of the lease granted in favour of the writ respondent No. 6. But the direction to grant lease in favour of one of the two remaining societies does not appear to be inconformity with the requirement of the Nitimala 2009 as some of the members of these two societies appear to be described as businessman/farmer. Accordingly, the Civil Petition for Leave to Appeal was disposed of with modification of the impugned order directing to grant lease to one of the other two applicants Samity is set aside. The respondents were directed to start fresh process to lease out the fishery in question in accordance with the provision of the Nitimala 2009. The respondents were also directed to allow the petitioner four months time to hand over possession of the fishery in question and also to refund the petitioner the proportionate lease money for the unexpired period of lease. ... (13 and 14)

 
For the Appellants: Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mr. Giasuddin Ahmed, Advocate-on-Record.
For the Respondent No. 1 : Dr. Md. Ali Advocate, instructed by Mr. Ziaur Rahman, Advocate-on-Record.
For the Respondent Nos. 2-6: Not represented.
 
CIVIL PETITION FOR LEAVE TO APPEAL No. 355  OF 2012
 
JUDGEMENT
Muhammad Imman Ali, J:

This petition for leave to appeal is directed against the judgement and order dated 20.01.2011 passed by a Division Bench of the High Court Division in Writ Petition No. 2942 of 2010 making the Rule absolute with a direction upon the writ respondent No.2 to implement the decision of the Upozila Jalmahal Management Committee, dated 9th February, 2010, and thereby take a decision in accord-ance with the Rules to demise the fishery concerned to one of the two remaining societies namely (1) Lahlamary Fisheries Co-operative and (2) Ramibari Fisheries Co-operative Society forthwith.

The facts relevant for disposal of this petition are that the writ petitioner applied for long term lease under Development Scheme for the “Shukro Bari Damus Dighar Fishery” situated within Upazila-Shibigonj, District-Chapai Nababgonj. His application was filed before the Ministry, which called for report from the Deputy Commissioner, Chapai Nababgonj who then forwarded the application to the Upazila Jolmohal Management Committee for investigation and report. Thereafter, the report of the Upazila Jolmohal Management Committee was forwarded to the Deputy Commissioner for consideration. However, the District Jolmohal Management Committee ignoring the findings and recommendation of the Upazila Jolmohal Management Committee decided to recommend lease in favour of the writ respondent No.6-petitioner herein.

The writ petitioner’s contention was that the membership of the writ respondent No.6- the Daipukuria Union Matshajibi Samabaya Samity Ltd. did not consist of genuine fishermen of locality as the President of the Samity was listed in the voters’ list as businessman and as such the co-operative society consisting of non-fisherman cannot qualify to get lease. The writ petitioner further contended that the writ respondent No.6 society is not a riparian fishermen Co-operative Society and that members of the said society are living away from the fishery and as per the Nitimala-2009 they are not qualified for getting lease.

Rule Nisi was issued by the High Court Division upon the respondents to show cause as to why the granting of lease of the fishery concerned to writ respondent No.6 for a period of 6(six) years with effect from 1417-1422 B.S. should not be declared to have been made without lawful authority. The operation of the memo granting lease was stayed.

The writ respondent No.6 (petitioner herein) filed an affidavit-in-opposition stating, inter alia that the writ respondent No.6 was also an applicant for grant of lease under the Development Scheme for the same fishery and that the Deputy Commissioner prepared a report in respect of his application and forwarded the same to the writ respondent No. 1 for giving a decision. He further contended that the writ respondent No.6 quoted the highest proposed lease money and for that reason recommendation was made to grant lease in it’s favour.

After hearing all the necessary parties the High Court Division by the impugned judgement and order made the Rule absolute holding that the lease agreement executed in favour of the writ respondent No.6 stands rescinded ab initio and at the same time directed the writ respondent No.2 to implement the decision of the Upozilla Jalmahal Management Committee, dated 09.02.2010, and thereby to take a decision in accordance with the Rules to lease the fishery concerned to one of the two remaining applicant societies namely (1) Lahlamary Fisheries Co-operative and (2) Ramibari Fisheries Co-operative Society.

Mr. Abdul Wadud Bhuiyan, the learned Counsel appearing on behalf of the petitioner submits that the Nitimala provides that lease under the Development Scheme is to be given to applicants who earn their livelihood mainly from fishing. He further submits that the Samity of the petitioner has been duly registered upon finding that the members of the Samity are genuine fishermen. He points out that Annexure-11 and 12 to the writ petition supports the contention of the petitioner that he and his society members are genuine fishermen and accordingly the lease was properly granted to them. He submits that without challenging or canceling the registration of the Samity the writ petitioner cannot challenge the grant of lease in their favour. Finally, by reference to the voters’ list the learned Counsel submits that the members of the writ petitioner’s Samity are also described in the voters’ list as businessman or farmer. Therefore, the impugned judgement and order directing lease to be granted to them is erroneous.

Dr. Md. Ali, the learned Advocate appearing on behalf of the respondent No.1 submits that the voters’ list is compiled upon information gathered in the locality and reflects the true profession of the voters’ and, therefore, when the writ respondent No.6 is described as a businessman, and the same description appears in his affidavit-in-opposition, he cannot be entitled to get lease of a fishery where a pre-condition is that the applicant must be member of a society of genuine fisherman. He further points out that the purpose of the Nitimala was to alleviate the poverty of real fishermen, i.e., those whose livelihood is from catching and selling fish. He points out from Annexure-12 that the petitioner herein has been described as a fish cultivator and businessman, which is far from a genuine fisherman who earns his livelihood by catching and selling fish.

We have considered the submissions of the learned Counsel for the parties concerned and perused the impugned judgment of the High Court Division and other connected papers on record.

We find from the Nitimala, 2009 that the lease of fishery under long term development scheme is to be given to any society which is a registered society of genuine fishermen and that if it is found that any society consists of any member who is not a real fisherman then the society will not be eligible to get lease of a Government Jalmohal. A real fisherman has been defined as one who catches and sells fish from a natural source and that is his primary source of livelihood.

The High Court Division in the impu-gned judgement did not accept the contention of the instant petitioner that someone engaged in the business of rearing and selling fish is also to be accepted as a fisherman. So, the judgement of the High Court Division cannot be faulted. On the other hand, the membership of fishermen society, of which the petitioner is the president, still remains valid, although his description as businessman in the voters’ list tends to support the contention that he is not a genuine fisherman within the meaning of the Nitimala, 2009.

It is the contention of Mr. Wadud Bhuiyan that the direction given by the High Court Division to grant lease of the fishery concerned to one of the two remaining societies is also based on misreading of evidence on record. We also find that the voters’ list of the locality shows that the members of the writ petitioner’s Samity are also described variously as businessman / farmer/worker etc.

In view of the submissions from the Bar and the evidence pointed out to us, we are of the opinion that the High Court Division rightly ordered recission of the lease granted in favour of the writ respondent No.6. But the direction to grant lease in favour of one of the two remaining societies does not appear to be in conformity with the requirement of the Nitimala, 2009 as some of the members of those two societies appear to be described as businessman /farmer.

In the facts and circumstances described above, we are of the view that the instant Civil Petition for Leave to Appeal be disposed of with modification of the order passed by the High Court Division. The direction to grant lease to one of the other two applicants’ Samity is set aside. The respondents are directed to start fresh process to lease out the fishery in question in accordance with the provisions of the Nitimala 2009. The respondents are directed to allow the petitioner four months time to hand over possession of the fishery in question and also to refund to the petitioner the proportionate lease money for the unexpired period of the lease.

Ed.