Ganga Ram Das Vs. Tezpur Kaibarta
Co-Operative fishery Society Ltd.  INSC 5 (29 January 1957)
BHAGWATI, NATWARLAL H.
DAS, SUDHI RANJAN (CJ) AIYYAR, T.L.
VENKATARAMA SINHA, BHUVNESHWAR P.
CITATION: 1957 AIR 377 1957 SCR 479
Rule 12, Assam Fishery Rules--Whether ultra
vires and repugnant to s. 16 of the Assam Land Revenue Regulation, 1 of 1886.
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.
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
D. N. Mukherjee, for respondent No. 1.
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 properly 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 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
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
"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
483 "Section 155. Additional power to
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 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
Section I-General and settlement of
Section III-Sanctuaries, and Section IV-Rules
for 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
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 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 empowered 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
Apart from the adoption of the tender system
in place of the 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.
(1)  S.C.R. 865.
(2) A.I.R. 1956 Assam 48.