# GANGA RAM DAS v. TEZPUR KAIBART A CO-OPERATIVE FISHERY SOCIETY LTD

- **Citation:** [1957] 1 S.C.R. 479
- **Court:** Supreme Court of India
- **Decided:** 1955-12-19
- **Case number:** Civil Appeal No. 374 of 1956
- **Bench:** S. R. DAS c. J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ganga-ram-das-v-tezpur-kaibart-a-co-operative-fishery-society-ltd-1352
- **Pages:** 9

## Headnote

BHAGWATJ, VENKATARAMA
AYYAR,
B. P .. SINHA and S. K. DAs J J.]
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 hy the State Government. It was contended that
r. 12 was ultra vi1·es 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 ~ettlements.
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

## Text

S.C.R.
SUPREME COURT REPORTS
GANGA RAM DAS
v.
TEZPUR KAIBART A CO-OPERATIVE
FISHERY SOCIETY LTD.
479
[S. R. DAS c. J.,
BHAGWATJ, VENKATARAMA
AYYAR,
B. P .. SINHA and S. K. DAs J J.]
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 hy the State Government. It was contended that
r. 12 was ultra vi1·es 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 ~ettlements.
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 the
.appellant.
D. N. Mukherjee, for respondent No. 1.
S. M. Lahiri, Advocate-General of Assam, and Naunit
Lal, for respondents Nos. 2 and 3.
62
1957
Ganga Ram Das
v.
T. K. Co~op. Fishtr.J
Society Ltd.
480
SUPREME COURT REPORTS
(1957)
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. 1 for a period of three years, viz., from April l,
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.
l
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 anti the fishery had to be settled properly according to the rules under which these settlements are usually m~de. 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,
Naruddin Ahmed v. State of Assam( ), declaring r. 12
of the Fishery Rules "ultra uirt:s the State Government"
au<l
therefore invalid and unenforceable.
It
followed that judgment and held that the respondent
No. 3 had no jurisdiction to make a settlement under
{r) A.l.R. 1956 Auam 48.
S.C.R.
SUPREME COURT REPORTS
481
r. 12 of the Fishery Rules 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. 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 m
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 ofAssam(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 h:td
it established that the rule was intra vires the settlement of the fishery by respondent No. 3 with respondent No. 1 would have been with jurisdiction and the
ca11cellation by respondent No. 2 would
have been
void and inoperative.
This relief was, however, not
(1) A.LR. 1956 Assam 48.
1957
GangaR1J111Das
v.
T. K. Co-op. Fishery
Society Ltd.
BhagwatiJ.
1957
Ganga Ram Das
v.
T.K. C,,.ip. Fishery
Society Lld.
BhagwatiJ.
482
SUPREME COURT REPORTS
[19571
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 2t 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
wbjch 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. 1 was as to
the intra vires character of r. 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 1 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".
S.C.R.
SUPREME COURT REPORTS
483
"Section 155. Additional power to make mies.
,
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 tlie Fishery Rules : No fishery shall be
setthl 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 bv auction system whenever it is
considered necessary."
This rule occurs in chapter X of the Assam Land
Revenue Manual, Vol. 1 (6th ed.) headed "Rules for
settlement of fisheries".
This chapter is divided
into
four sections :
Section
I-General and settlement of fisheries.
Section II-Miscellaneous.
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, conditions of
sale, execution of leases and confirmation of sale, provision is made in r. 11 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
1957
Ganga Ram Das
v
T. K. Co-op. Fis1<ery
Society Ltd.
Bhagwati] •
1959
Ganga Ram Das
v.
T.K. Co.op. Fislilry
Socitty Ltd.
BhagwotiJ.
484
SUPREME COURT REPORTS
[1957)
to introduce the tender svstem of settlement of fisheries
in place of the auction system whenever it is considered
necessary. The rest of the provisions of s. 1 and those
of ss. II and III are not necessary to be set out for the
purpose of this appeal but reference may he made to ·
the provisions of s. IV which contains rules for settlement of fisheries by tender system. Rule 42 provi<les
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
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 Revenue Regulation I of 1886. That
section deals with the right of fishery and
provides
that the Deputy
Commissioner, with the
previous
sanction o[ the State Government, may by a proclamation declare any collection of water to be fishery and
no right in a fishery so declared shall he deemed to
have been acquired by the public or by any person
'-
S.C.R.
SUPREME COURT REPORTS
485
except as provided in the rules made under s. 1?5.
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. The whole thing is left
to the discretion of the State Government which is
empo-wt:red 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 rub 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 th:it 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
tq 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
1957
Ganga Ram Das
v.
T. K. Co-op. Fishny
Socie!Y Ltd.
Bh/Jgwati ].
1957
Ganga Ram Das
v.
T. K. Co~op. Fishery
Society Ltd.
Bltagwati].
486
SUPREME COURT REPORTS
[19571
rr. 1 to 11 of s. I, a prohibition against the settlement
of fi_shery 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
fishers rights otherwise than by sale. No limitation
is placed on this power which is thus vested in the
Stare 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 sa
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 cancel--
lation or relinquishment of fishery
lease
before
the
expiration of the periad thereof and having regard ta
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 ta
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. 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
S.C.R.
SUPREME COURT REPORTS
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.
1 is based on a misconception and cannot 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 (2)
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. 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 judgment.
Respondent No. 3, the only
person vitallv interested in the decision of this issue
~ill, in spite 'of its entry having been by the back-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. 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.
1957
Ganga Ram Das
v
T. K. Co-op. Fishery
Society Ltd.
BhagwatiJ.