1957 Supreme(SC) 6

SUPREME COURT OF INDIA
29th January 1957
S.R. DAS, C.J.I., BHAGWATI, VENKATARAMA AYYAR, SINHA AND S. K. DAS, JJ.
Ganga Ram Das, Appellant
Versus
The Tezpur Kaibarta Co-operative Fishery Society Ltd. and others, Respondents.
Civil Appeal No.374 of 1956
Advocates appeared
Mr. Fakruddin Ali Ahmed, Senior Advocate (Mr. K.R. Chaudhry, Advocate with him), for Appellant: Mr. D.N. Mukherjee, Advocate for Respondent No.1 : Mr. S.M. Lahiri, Advocate General of Assam, (Mr. Naunit Lal, Advocate with him) for Respondents Nos. 2 and 3.

Headnote:Assam Land and Revenue Regulation, 1 of 1886, Sections di aud 155-Settlement of fisheries-Power of State Government to settle without auction-Land Revenue Manual, Vol. I, Chapter 10, Section I, Rule 12

       The State of Assam, Respondent No.3, had settled certain fishery with Respondent No. ] for a period of three years,.viz. from 1st April 1954 to 31st March, ]957, 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 and after due inquiry cancelled the settlement of the fishery. It appeared that after such cancellation, Respondent No.3, purporting to act again under R. 12 settled the said fishery with the appellant with effect from 4th May, 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 absolute]y illegal and the fishery had to be settled properly according to the Rules uoder which these settlements were usually made. The High Court had ruled in Nuruddin Ahmed v. State of Assam1 that R. 12 of the Fishery Rules was ultra vires the State Government, aod therefore invalid and unenforceable, and following that it held that the Respondent No.3 had no jurisdiction to make a settlement under R. 12 of the Fishery Ru]es with the Respondent No.1 and the order of cancellation should be upheld on that ground alone. The appeal of Respondent No. 1 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. 1 and the appellant were both set aside and the authorities were directed to make fresh settlement of the fishery in question according to the existing Fishery Rules.

       Held (allowing the appeal) : (I) Section 16 of the Assam Land and Revenue Regulation I of ]886 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 except as provided in the rules made under S. 155. There is absolutely nothing in the provisions of S. ] 6 of the Act 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 to the granting of licenses and the

       1. A.I.R. 1956 Assam 48.

       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 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.

       (2) The State Government is by R. 12 of the Rules for settlement of fisheries 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 R. 12 sufficiently indicates of the rule making authority. That rule after enacting a prohibition against the settlement of fishery rights otherwise than by sale carves out an exception 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 empowered to settle fishery rights otherwise than by sale it can do $0 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.

       Rule 12 thus 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 Act and R. 12 of the Fishery Rules. The question of the power of the State Government really turns on the construction of R. 12 and no question of the intra vires or the ultra vires character of the rule vis-a-vis S 16. of the Act can arise in disposing of that question.