Case: Ganga Ram Das Vs. Tezpur Kaibarta Co-Operativefishery Society Ltd

may here dispose of an argument which was urged on behalf of Respondent No, 1 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 and Revenue Regulation 1 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 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. 1 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.11. 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 licenses 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 he 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.12. Unless therefore, the action of the State Government could he 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 R. 12 sufficiently indicates the intention of the rule making authority.After having prescribed the procedure by way of auction sales in 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 it 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 warranted. 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 buying 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 there 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 otherwise than by sale. There is nothing in the provisions of S. 4 containing rules for settlement of fisheries by tender system which militates against the above position.13. We are therefore, of opinion that R. 12 specifically empowers the State Government to settle the fishery rights otherwise then by sale and there is no conflict at all between the provisions of S.16, Assam Land and Revenue Regulation, I of 1886, and R. 12 of the Fishery Rules.The decision of this appeal turns 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. 1 is based on a misconception and cannot be sustained. The decision of this Court in State of Assam v. Keshab Prasad Singh, 1953 S. C. R. 865 = (A. I. R. 1953 S. C.309) (B) on which the learned judges of the Assam High Court apparently based their judgment in (S) A.I.R. 1956 Assam 48(A) did not touch the present controversy and it follows that that was clearly wrong and cannot be supported.14.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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. 4 prescribes the procedure for settlement of fisheries by tender system.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. 1 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 licenses 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 he entitled to make any settlement of fishery rights unless and until there was a rule made in that behalf under S.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 he justified by reference to any rule made under S. 155 it would not avail theare therefore, of opinion that R. 12 specifically empowers the State Government to settle the fishery rights otherwise then by sale and there is no conflict at all between the provisions of S.16, Assam Land and Revenue Regulation, I of 1886, and R. 12 of the Fishery Rules.The decision of this appeal turns 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. 1 is based on a misconception and cannot be sustained. The decision of this Court in State of Assam v. Keshab Prasad Singh, 1953 S. C. R. 865 = (A. I. R. 1953 S. C.309) (B) on which the learned judges of the Assam High Court apparently based their judgment in (S) A.I.R. 1956 Assam 48(A) did not touch the present controversy and it follows that that was clearly wrong and cannot beenough 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.Respondent No. 1 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 judgement. Respondent No. 3 the only person vitally interested in the decision of this issue will, in spite of its entry having been by the beck-door, be entitled to the benefit of this judgment, an unsought relief that it will get as a result of our decision on the main point in controversy.