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

2. The State of Assam Respondent No.3, had settled the Charduar Brahmaputra Fishery with the respondent No.1 for a period of 3 years, viz., from 1st April 1954 to 31st March 1957 at an annual zama of the Rs. 19,000 under R.12 of the Fishery Rules. The Deputy Commissioner of the 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 underlease 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 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 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 R. 11 of S.*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 31st August 1955, delivered a judgment in civil Rule No. 56 of 1955, Nuruddin Ahmed v. State of Assam (S) A.I.R. 1956 Assam 48 (A), 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 R.12 of the Fishery Rules with the Respondent No. 1 and the order of cancellation should he 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 hold that the settlement made by respondent in his favour was entirely without jurisdiction. The Rule obtained by Respondent No. 1 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 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 (S) A.I.R. 1956 Assam 48 (A) 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

Reasoning: 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.