http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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