Full Judgment Text
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PETITIONER:
GANGA RAM DAS
Vs.
RESPONDENT:
TEZPUR KAIBARTA CO-OPERATIVEFISHERY SOCIETY LTD.
DATE OF JUDGMENT:
29/01/1957
BENCH:
BHAGWATI, NATWARLAL H.
BENCH:
BHAGWATI, NATWARLAL H.
DAS, SUDHI RANJAN (CJ)
AIYYAR, T.L. VENKATARAMA
SINHA, BHUVNESHWAR P.
DAS, S.K.
CITATION:
1957 AIR 377 1957 SCR 479
ACT:
Rule 12, Assam Fishery Rules--Whether ultra vires and
repugnant to s. 16 of the Assam Land Revenue Regulation, 1
of 1886.
HEADNOTE:
Section 16 of the Assam Land Revenue Regulation, 1 of 1886
defines " right of fishery " and s. 155(f) empowers the
Provincial Government to make rules for " the granting of
licences, or the farming of the right......... to fish in
the fisheries". The State Government accordingly framed the
Fishery Rules and r. 12 thereof provides that no fishery
shall be settled otherwise than by sale except by the State
Government. It was contended that r. 12 was ultra vires
the Provincial Government and was repugnant to s. 16 of
the Regulation.
Held, that r. 12 is not ultra vires’ and is not repugnant to
s. 16 of the Regulation. There is nothing in s. 16
which indicates the principles or the policy on which the
rules for the acquisition of fishery rights are to be
framed. The whole thing is left to the discretion of the
State Government.
Held further, that r. 12 specifically empowers the State
Government to settle the fishery rights otherwise than by
sale, e.g., by individual settlements.
Nuruddin Ahmed v. State of Assam, A. I. R. 1956 Assam 48
overruled.
State of Assam v. Keshab Prasad Singh, (1953) S. C. R. 865
not applicable.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 374 of 1956.
Appeal by special leave from the judgment and order dated
December 19, 1955, of the Assam High Court in Revenue Appeal
No. 33(M) of 1955. Civil Rule No. 76 of 1955.
Fakhruddin Ali Ahmed and K. R. Chaudhry, for the appellant.
D. N. Mukherjee, for respondent No. 1.
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S. M. Lahiri, Advocate-General of Assam, and Naunit Lal,
for respondents Nos. 2 and 3,
62
480
1957. January 29. The Judgment of the Court was delivered
by
BHAGWATI J.-This appeal with special leave’ arises out of a
judgment of the Assam High Court in Revenue Appeal No. 33
(M) of 1955 and Civil Rule No. 76 of 1955.
The State of Assam, respondent No. 3, had settled the
Charduar Brahmaputra Fishery with the respondent No. I for a
period of three years, viz., from April 1, 1954, to March
31, 1957, at an annual zama of Rs. 19,600 Under r. 12 of the
Fishery Rules. The Deputy Commissioner of Darrang,
respondent No. 2, received some reports against the
respondent No. 1 alleging violation of cl. VI of the
Fishery lease and also of certain other conditions of’ the
lease. He obtained reports from the Sub -Deputy Collector
and the Extra Assistant Commissioner in regard to these
allegations and came to the conclusion that respondent No. 1
had created under-lease in favour of certain persons and
cancelled the settlement of the fishery. It appears that
after such cancellation, respondent No. 3, purporting to act
again under r. 12, settled the said fishery with the
appellant with effect from May 4, 1955, and respondent No. 1
was directed to give up possession thereof with effect from
that date. Respondent No. 1 thereupon obtained a Rule from
the Assam High Court alleging that the said settlement was
absolutely illegal and the fishery had to be settled pro-
perly according to the rules under which these settlements
are usually made. A Revenue Appeal was also filed against
the order of respondent No. 2 under rule 11 of section 1 of
the Fishery Rules and both the Rule and the Revenue Appeal
were heard together by the
Assam High Court.
The High Court had already on August 31, 1955, delivered a
judgment in Civil Rule NO. 56 of 1955, Nuruddin Ahmed v.
State of Assam (1), declaring r. 12 of the Fishery Rules
"ultra vires the State Government" and therefore invalid and
unenforceable. It followed that judgment and held that the
respondent No. 3 had no jurisdiction to make a settlement
under
(1) A.I.R. 1956 Assam 48.
481
r. 12 of the’ Fishery Rules with the respondent No. I and
the order of cancellation should be upheld on that ground
alone. The appeal of respondent No. I was accordingly
dismissed. In regard to the appellant also the High Court
came to the same conclusion and held that the settlement
made by respondent No. 3 in his favour was entirely without
jurisdiction. The Rule obtained by respondent No. I was
accordingly made absolute. The result was that the
settlements made by respondent No. 3 with respondent No. I
and the appellant were both set aside and the authorities
were directed to make a fresh settlement of the fishery’ in
question according to the existing Fishery Rules.
The State of Assam had not obtained any leave to appeal
against the decision of the High Court in Nuruddin Ahmed v.
State of Assam (1), and was apparently content with the
decision that r. 12 of the Fishery Rules was ultra vires.
The appellant, however, obtained special leave to appeal
against the decision of the High Court -which set aside the
settlement of the Fishery made by respondent No. 3 along
with him and impleaded the State of Assam as respondent No.
3 along with respondent No. 1. The appellant was interested
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in establishing that r. 12 of the Fishery Rules was intra
vires the State of Assam had acquiesced in the position that
the rule was ultra vires but in so far as it was added as
respondent No. 3 in this appeal it took up the position that
r. 12 of the Fishery Rules was intra vires, a position which
it had not so far chosen to sustain by appealing against the
decision of the High Court in Nuruddin Ahmed v. State of
Assam (1) or in the present case but which it tried to
support as it were by the back-door by appearing in this
appeal and supporting the appellant.
Respondent No. 1 appears to have been in a similar quandary.
If the appellant gained his point and had it established
that the rule was intra vires the settlement of the fishery
by respondent No. 3 with respondent No. I would have been
with jurisdiction and the cancellation by respondent No. 2
would have been void and inoperative. This relief was,
however, not
(1) A. 1. R. 1956 Assam 48.
482
available to respondent No. 1 inasmuch as it had not
appealed against the judgment of the High Court. Nor did it
suit it to adopt that position because not more ,than 21
months were left for the lease to run and at the end of that
period it would have found itself in the same invidious
position in which it was when the allegations in regard to
the breach of the conditions of the fishery lease had been
made against it. Respondent No. 1, therefore, at the
hearing of the appeal adopted the peculiar attitude of
supporting the judgment of the High Court and of contending
that r. 12 of the Fishery Rules was ultra vires. That was
the only basis on which the settlement made by respondent
No. 3 with the appellant could be set at naught and no
further comment is needed on the obviously inconsistent
attitude adopted by respondent No. 1.
The issue which was, therefore, contested between the
appellant supported as he was by respondent No. 3, the State
of Assam. and respondent No. I was as to the intra vires
character of 12 of the Fishery Rules. It will be
appropriate at this stage to set out the relevant provisions
of the Assam Land and Revenue Regulation, 1886 (Regulation I
of 1886), and the rules for the settlement of fisheries made
by the State of Assam thereunder:
"Section 16. Right of fishery.-
The Deputy Commissioner, with the previous sanction of the
Provincial Government, may, by proclamation published in the
prescribed manner, declare any collection of water, running
or still,. to be a, fishery ; and no right in any fishery so
declared shall be deemed to have been acquired by the public
or any person, either’ before or after the commencement of
this Regulation, except as provided in the Rules -made under
section 155;
Provided that nothing in this section shall affect any
express grant of a right to fish made by or on behalf of the
British Government, or any fishery-rights acquired by a
proprietor before the commencement of this Regulation, or
the acquisition by a proprietor of such rights in any
fishery forming after the commencement of this Regulation in
this estate".
483
"Section 155. Additional power to make rules.
The Provincial Government may, in addition to the other
matters for which he (sic) is empowered by this Regulation
to make rules, consistent with this regulation, relating to
the following matters:
(f) the granting of licences, or the farming of the
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right.................. to fish in fisheries proclaimed
under
section 16...................... "
"Rule 12 of the Fishery Rules: No fishery shall be settled
otherwise than -by sale except by the State Government. The
order of settlement passed by the State Government shall be
final:
Provided that the State Government may introduce the tender
system of settlement of fisheries in place of sale by
auction system whenever it is considered necessary."
This rule occurs in chapter X of the Assam Land Revenue
Manual, Vol. I (6th ed.) headed " Rules for settlement of
fisheries ". This chapter is divided into four sections:
Section I-General and settlement of fisheries.
Section 11-Miscellaneous.
Section III-Sanctuaries, and
Section IV-Rulesfor settlement of fisheries by tender
system.
The normal procedure for settlement of fisheries prescribed
in r. 3 of s. I is by auction sales in regard to all
registered fisheries held under leases expiring on the last
day of the current year or which at the last previous
auction were reserved for sale under r. 9. After making
provision for the place of sale, condition,-, of sale,
execution of leases and confirmation of sale, provision is
made in r. 1 1 for appeal to the Assam High Court against
all orders of a Deputy Commissioner or Sub-Divisional
Officer passed under the rules and it is provided that there
shall be no appeal against an order of settlement passed by
the State Government under r. 12. Then follows r. 12 set out
hereinabove which provides that no fishery shall be settled
otherwise than by sale except by the State Government and a
proviso is enacted to this rule enabling, the State
Government
484
to introduce the tender system of settlement of fisheries in
place of the auction system whenever it is considered
necessary. The rest of the provisions of s. I and those of
ss. II and III are not necessary to be set out for the
purpose of this appeal but reference may be made to the
provisions of s. IV which contains rules for settlement of
fisheries by tender system. Rule 42 provides that the
Government may from time to time select any fishery or
fisheries to be settled by tender system and instruct the
Deputy Commissioner to lease them out for any specified
period and the procedure to be adopted in the Settlement of
fisheries by tender system is therein provided.
It will be seen from the above summary of the relevant rules
that the normal -procedure for settlement of fisheries is by
holding auction sales. Power is, however, given to the
State Government to introduce the tender system of
settlement of fisheries in place of the auction system
whenever it is considered necessary and if the Government
selects any fishery or fisheries to be settled by tender
system and instructs the Deputy Commissioner to lease them
out for any specified period acting in exercise of that
power, s. IV prescribes the procedure for settlement of
fisheries by tender system.
The question, therefore, which arises for our determination
is whether there is any power conferred on the State
Government by these rules to settle fisheries otherwise than
by sale, e.g., by individual settlements without a
settlement thereof by auction system or by tender system.
We May here dispose of an argument which was urged oil
behalf of Respondent No. I before us and which appears to
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have found favour with the High Court that r. 12 of the
Fishery Rules which is the source of that power was ultra
vires and repugnant to s. 16 of the Assam Land Revenue
Regulation I of 1886. That section deals with the right of
fishery and provides that the Deputy Commissioner, with ’the
previous sanction of the State Government, may by a
proclamation declare any collection of water to be fishery
and no right in a fishery so declared shall be deemed to
have been acquired by the public or by any person
485
except as provided in the rules made under s. 155. The
instances before us are not covered by the proviso and we
shall, therefore, make no mention of the same. The only
relevant enquiry is whether there was any, rule validly
enacted under s. 155 which enabled the State Government to
settle the fishery otherwise than by sale by making an
individual settlement thereof with Respondent No. I or the
appellant in the manner in which it was done. There is
absolutely nothing in the provisions of s. 16 which would go
to show what are the principles on which such rules for the
acquisition of fishery rights by the public or any person
have to be made nor is there anything therein to indicate
any policy which has to guide the State Government in the
making of such rules. The whole thing is left to the
discretion of the State Government which is empowered by s.
155, inter alia, to make rules relating to the granting of
licences and the farming of the right to fish in fisheries
proclaimed under s. 16 consistent with the Regulation. No
doubt the State Government would also be bound by such rules
and would not be entitled to make any settlement of fishery
rights unless and until there was a rule made in that behalf
under s. 155. It would not be open to the State Government
to contend that it had absolute property in these fishery
rights and it was, therefore, entitled to settle them in any
manner whatever.
Unless, therefore, the action of the State Government could
be justified by reference to any rule made under s. 155 it
would not avail the appellant. Reliance is accordingly
placed on the provisions of r. 12 of the Fishery Rules and
it is submitted that under that rule specific power is given
to the State Government to settle the fishery rights
otherwise than by sale. The State Government is thereby
invested with the power to settle fishery rights even by
individual settlements without following the auction system
or the tender system. Even though this power is not vested
in the State Government by express provision made in that
behalf, the context of rule 12 sufficiently indicates the
intention of the rule-making authority. After having
prescribed the procedure by way of auction sales in
486
rr.1 to 11 of S. 1, a prohibition against the settlement of
fishery rights otherwise than by sale is enacted in r. 12
except in the case of the State Government. No fishery is
to be settled otherwise than by sale and that prohibition is
general in terms but an exception is carved out in favour of
the State Government in terms which are only capable of the
construction that the State Government shall have the power
of settling fishery rights otherwise than by sale. No
limitation is placed on this power which is thus vested in
the State Government and if the State Government is em-
powered to settle fishery rights otherwise than by sale it
can do so by adopting the tender system if it thought it
desirable to do so or even by entering into individual
settlements if the circumstances of the case so warranted.
Apart from the adoption of the tender system in place of the
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auction system, circumstances may conceivably arise where
either by reason of the cancellation or relinquishment of
fishery lease before the expiration of the period thereof
and having regard to the situation then obtaining, it may
not be feasible or desirable to sell fishery rights for the
unexpired portion of such a lease either by public auction
or by inviting tenders and the State Government may, under
those circumstances, consider it desirable to enter into
individual settlement of the fishery rights so as to earn
for the State as much of revenue as possible. No fetter can
be placed on the discretion of the State Government in this
behalf and the State Government would be the best judge of
the situation and would be in a position to determine what
procedure to adopt in the matter of the settlement of
fishery rights other. wise than by sale. There is nothing
in the provisions of s. IV containing rules for settlement
of fisheries by tender system which militates against the
above position.
We are, therefore, of opinion that r. 12 specifically
empowers the State Government to settle the fishery rights
otherwise than by sale and there is no conflict at all
between the provisions of s. 16 of the Assam Land and
Revenue Regulation, I of 1886, and r. 12 of the Fishery
Rules. The decision of this appeal turns
487
on the construction of r. 12 and we fail to understand how
the question of the intra vires or the ultra vires character
of r. 12 at all arises. The whole of the argument addressed
before us on behalf of respondent,. No. I is based on a
misconception and can not be sustained. The decision of
this Court in State of Assam v. Keshab Prasad Singh (1), on
which the learned judges of the Assam High Court apparently
based their judgment in Nuruddin Ahmed v. State of Assam(1)
did not touch the present controversy and it follows that
that was clearly wrong and cannot be supported.
The result, therefore, is that this appeal will be allowed
and the settlement of fishery rights by respondent No. 3
with the appellant declared valid and operative. Logically
enough respondent No. 1 also would have been entitled to a
similar relief but there are various questions of fact
involved in the determination of the question whether the
fishery lease in his favour was validly cancelled by
respondent No. 2. Respondent No. I moreover has disclaimed
such benefits by adopting the contention that r. 12 of the
fishery rights was ultra vires. We, therefore, do not think
that respondent No. 1 is entitled to any relief on the basis
of this judgment. Respondent No. 3, the only person vitally
interested in the decision of this issue will, in spite of
its entry having been by the back-door, be entitled to the
benefit of this judgment, an un-sought relief that it will
get as a result of our decision on the main point in
controversy. Under the peculiar circumstances of the case
we feel that the proper order for costs should be that each
party will bear and pay its respective costs of this appeal
and we do order accordingly.
Appeal allowed.
(1) [1953] S.C.R. 865.
(2) A.I.R. 1956 Assam 48.
63
488