Decided on December 16,1968

Sikku Alias Sikku Haldar Appellant
The State Of Assam Respondents


S.K. Dutta, C.J. - (1.) CIVIL Rules Nos. 68 and 144 of 1968 are analogous and they are heard together and a single judgment is delivered. The Petitioner's case in Civil Rule No. 68 of 1968 is that he is a citizen of India and a member of the Scheduled Caste community and also an actual fisherman by profession. He is the sitting lessee of Fishery No. 2/88 Dharnad Brahmaputra Parts II, III and other group Fishery in the District of Goalpara which was settled with him for three years ending on 31 -3 -68. But the aforesaid fishery was settled by the Governor of Assam on the 20th February 1968 in exercise of powers under Rule 12 of the Assam Fishery Rules with Respondent No. 4 for the period from 1 -4 -68 to 31 -3 -71 at an annual revenue of Rs. 18006. This settlement with Respondent is being challenged by this writ petition.
(2.) THE main contention of Dr. Medhi, the learned Counsel for the Petitioner is that the aforesaid Rule 12 of the Fishery Rules is violative of Article 14 of the Constitution of India. He submits that by this Rule an unguided and uncanalised power is given to the executive to pick and choose any fishery for direct settlement and then to settle it with somebody arbitrarily. Section 16 of the Assam Land and Revenue Regulation debars the settlement of proclaimed fisheries except in accordance with rules. Rule 12 is also bad, according to Dr. Medhi, on the ground that two procedures for settlement of fisheries are laid down, viz. tender system and direct settlement by the Government and the Government can choose any of these procedures at its sweet will. The direct settlement prescribed by Rule 12 is a more stringent procedure and it must therefore be struck down as violative of Article 14 of the Constitution. It is further contended that the Rule is violative of Article 19(1)(g) of the Constitution as it imposes unreasonable restriction on the right to practise a profession. I may examine the history of Rule 12 of the Fishery Rules. First I may refer to the decision of the Supreme Court in State of Assam v. Keshab Prasad Singh : AIR 1953 SC 309. When that case arose, Rule 12 was not yet made. It was observed by the Supreme Court that fisheries in Assam were such a lucrative source of revenue that the legislature considered it undesirable to leave their settlements to the unfettered discretion either of the Provincial Government or of a single individual however eminent he might be. That is why Section 16 of the Assam Land and Revenue Regulation was enacted. The first paragraph of this section reads as follows: 16. The Deputy Commissioner, with the previous sanction of the State Government, may, by proclamation published in the prescribed manner, declare -any collection of water, running or sill, to be a fishery; and no right in any fishery so declared shall be doomed 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. The Supreme Court pointed out that once a fishery was so declared no person could acquire fishing right in it except as provided by rules drawn up under Section 155.
(3.) THERE was at that time Rule 190A which read as follow: No fishery shall be settled otherwise than by sale as provided in the preceding instructions except with the previous sanction of the Provincial Government." The Supreme Court held that this rule did no allow the Government to lift the sale of a fishery out of the rules whenever Government found it convenient and then to dispose it of by executive action. It only authorised the Government to ask the Deputy Commissioner to proceed in a manner which was not quite in accordance with the instructions contained in the Rules. If rule 100A was construed to mean that it permitted the Government to lift a fishery out of the Rules, the rule would have been repugnant to Section 16 of the Regulation. Alter the above judgment, rule 12 came to be made in place of rule 190A and it runs as follows: 12. 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.;

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