Bhagat - (1.) THE Judgment of the Court was delivered by
(2.) 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 1/04/1954, to 31/03/1957, at an annual zama of Rs. 19,600.00 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 4/05/1955, 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 31/08/1955, 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 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' in question according to the existing Fishery Rules.
(3.) 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. 379 Respondent No. 1 appears to have been in a similar quandary. 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. 1 would have been with jurisdiction and the cancellation by respondent No. 2 would have been void and inoperative. This relief was, however, not 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.;