Citation Codes

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Case Number

Civil Rules Nos. 68 and 144 of 1968

Attorney(S)

J. C. Medhi
D. N. Hazarika
T. C. Das
B.C. Barua
Advocate General. G. K. Talukdar
Sr. Govt. Advocate
S. M. Lahiri
and U. C. Das
for O.P. No. 4 in C.R. No. 68/68
for Opp. Parties; D. Samoa
and P.. K
Goswami
for O.P. No. 3 In C.S. No. 144/68
for Opp. Parties

Judges

Hon'ble Mr. Justice M. C. Pathak
Hon'ble Mr. Chief Justice S. K. Dutta
Hon'ble Mr. Justice S. K. Dutta

Acts

Section 16 of the Assam Land and Revenue Regulation
Article 19(1)(g) either. Civil Rule No. 144
ARTICLE 14 CONSTITUTION OF INDIA
Assam Co-operative Societies Act, 1949.
Section 16 of the Regulation. Rule 12
Rule 12 of the Assam Fishery Rules
Rule 12 of the Fishery Rules.
Dutta, C.J: Civil Rules
rules. Rule 12

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Smart Summary

Concise Analytical Summary of the Opinion (Civil Rules Nos. 68 & 144 of 1968)

Factual and Procedural Background

These two civil rules were heard together and a single judgment was delivered by the Division Bench (Dutta, C.J., K.C. Sen, J., and M.C. Pathak, J.). The matters arise from executive settlements of fisheries under Rule 12 of the Assam Fishery Rules.

In Civil Rule No. 68 of 1968 the petitioner (described as a citizen of India, a member of a Scheduled Caste community and an actual fisherman) was the sitting lessee of Fishery No. 2/88 (Dharnad Brahmaputra Parts II, III and other group Fishery in Goalpara) under a settlement that expired on 31-3-68. The Governor of Assam, on 20 February 1968, settled that fishery under Rule 12 of the Assam Fishery Rules with respondent No. 4 for the period 1-4-68 to 31-3-71 at an annual revenue of Rs. 18,006. The petitioner challenged that direct settlement by writ petition.

In Civil Rule No. 144 of 1968 the petitioner was a Co-operative Fishery Society registered under the Assam Co-operative Societies Act, 1949. A different Co-operative Society applied for direct settlement of Fishery No. 2 (Chela Charkaria Fishery of North Lakhimpur), and the petitioner (the sitting lessee till 31-3-68) also applied for settlement. The Government settled the fishery with opposite party No. 4; the petitioner had withdrawn its application before the settlement but did not challenge the Government's jurisdiction or aver absence of special circumstances. Both petitions raised similar questions concerning the validity and exercise of power under Rule 12 of the Fishery Rules and were dismissed by the Court.

Legal Issues Presented

Whether Rule 12 of the Assam Fishery Rules, which permits the State Government to settle fisheries otherwise than by sale, is violative of Article 14 (equal protection and arbitrariness doctrine) of the Constitution of India by conferring an unguided or uncanalised discretion on the executive to make direct settlements.
Whether Rule 12 is repugnant to Section 16 of the Assam Land and Revenue Regulation (and thereby an impermissible exercise of rule-making/law-making power by effectively nullifying Section 16), or whether it can be validly read to permit direct settlement in special circumstances.
Whether Rule 12 imposes unreasonable restrictions on the right to practise a profession under Article 19(1)(g) by regulating settlement of fisheries.
Whether the petitioners are disentitled to relief by writ because they acquiesced in, or invited, the exercise of the Government's jurisdiction under Rule 12 (and relatedly, whether the absence of jurisdiction is patent or latent for the purposes of challenge).

Arguments of the Parties

Petitioner's (Appellant's) Arguments

Dr. Medhi, counsel for the petitioner in Civil Rule No. 68, argued that Rule 12 gives the executive an unguided and uncanalised power to pick and choose fisheries for direct settlement and to settle them arbitrarily, thereby violating Article 14 of the Constitution.
It was contended that Section 16 of the Assam Land and Revenue Regulation debars settlement of proclaimed fisheries except in accordance with rules; Rule 12 is bad because it creates two procedures (tender/sale and direct settlement) and permits the Government to choose one at will, making direct settlement a more stringent procedure that should be struck down as arbitrary.
Dr. Medhi also argued that Rule 12 violated Article 19(1)(g) as it imposed unreasonable restriction on the right to practise a profession (fishing).
He further submitted that in the facts of the petition there was no occasion for the Government to exercise power under Rule 12, and that the petitioner learned of secret attempts by respondent No. 4 to secure direct settlement; thus the settlement should be set aside. He maintained that waiver or acquiescence could not cure a total absence of jurisdiction.

Respondent's Arguments

The opinion does not contain a detailed account of the respondents' lawyers' submissions in conventional adversarial form. The Court, however, discusses prior judicial constructions (including the Supreme Court's) of Rule 12 and treats the Government's position—i.e., that Rule 12 permits direct settlement where special circumstances exist and that the Government's satisfaction on those circumstances is entitled to weight—as a controlling interpretive stance.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Assam v. Keshab Prasad Singh, AIR 1953 SC 309	Explained the reason for Section 16 of the Assam Land and Revenue Regulation: fisheries are lucrative and should not be left to unfettered executive discretion; once declared no rights except as provided by rules. Considered earlier Rule 190A.	Used to trace the history of rule-making and to show why Rule 12 was framed (to replace Rule 190A) and to emphasize that rules must govern acquisition of fishing rights; provided context for interpreting Rule 12 against Section 16.
Nuruddin Ahmed v. State of Assam, AIR 1956 Assam 48	Division Bench held that Rule 12 was antagonistic to spirit of Section 16 and gave arbitrary powers to Government (i.e., was a colourable exercise of rule-making power).	The Court recited this holding as part of the antecedent litigation history showing that a lower court had previously found Rule 12 objectionable on Section 16 grounds.
Ganga Ram Das v. Tezpur Kaibarta Co-operative Fishery Society Ltd., AIR 1957 SC 377	Supreme Court held Rule 12 valid: it creates an exception permitting State Government to settle fisheries otherwise than by sale where circumstances warrant; Government is the best judge of such circumstances.	The Court adopts the Supreme Court's construction as authoritative and decisive: Rule 12 is not repugnant to Section 16 if read to permit direct settlement only when special circumstances exist and the Government is the judge of those circumstances.
S.C. Prashar v. Vasantsen Dwarkadas, AIR 1956 Bom 530	Distinction between patent and latent lack of jurisdiction: where want of jurisdiction is patent, a party has a right to challenge; patentness is necessary for such a right.	The Court accepted this articulation and applied it to hold that lack of jurisdiction under Rule 12 would be latent (dependent on existence of material showing special circumstances) and therefore a petitioner who acquiesced would be disentitled to relief.

Court's Reasoning and Analysis

The Court proceeded by examining the historical and judicial background of Rule 12 in light of Section 16 of the Assam Land and Revenue Regulation and earlier Rule 190A. The Supreme Court's observations in State of Assam v. Keshab Prasad Singh were used to explain why Section 16 and rules governing fisheries exist: to prevent unfettered executive settlement of lucrative fisheries.

The Court analysed earlier judicial treatments: a Division Bench of this Court (Nuruddin Ahmed) had found Rule 12 inconsistent with Section 16, but the Supreme Court in Ganga Ram Das upheld Rule 12 by construing it as an exception permitting direct settlement only when special circumstances exist and by treating the Government as the appropriate judge of those circumstances.

Applying that authoritative construction, the Court held that Rule 12 must be read to allow direct settlement only where special circumstances exist. The State Government's subjective satisfaction that such circumstances exist would normally be final, but the Court emphasised a legal limit: a subjective satisfaction is not a valid exercise of discretion where there is a complete absence of material on which such satisfaction could be reasonably formed.

The Court then addressed the petitioners' conduct. It found that, in Civil Rule No. 68, the petitioner had acquiesced in the Government's exercise of jurisdiction and did not raise any objection at the time the Government acted. The petitioner did not assert that he then believed the Government lacked jurisdiction and later discovered otherwise. On the legal distinction between patent and latent lack of jurisdiction, the Court followed S.C. Prashar: where the lack of jurisdiction is latent (dependent on facts or material) acquiescence can bar relief; only patent lack of jurisdiction (apparent from the face of proceedings) entitles a party to challenge despite acquiescence.

The Court concluded that lack of jurisdiction in the context of Rule 12 would be latent unless there was a total absence of material; because the petitioner had acquiesced and did not show complete absence of material, he was disentitled to a writ. The Court rejected the contention that Rule 12 offended Article 19(1)(g), concluding that regulation of settlement of fisheries by rules is a reasonable restriction on the right to fish.

For Civil Rule No. 144, the Court applied the same analysis: the petitioner (the Co-operative Society) withdrew its application but did not contest the Government's jurisdiction or aver absence of special circumstances; accordingly the same reasoning led to dismissal.

Holding and Implications

Final Holding: Petitions dismissed. The rules are discharged and there will be no order as to costs.

Direct consequences for the parties: the executive settlement of the fisheries in question (settlements with respondent/opposite party No. 4) stands; both petitioners' challenges were rejected and no relief was granted.

Broader implications: The Court applied and followed the Supreme Court's construction of Rule 12 (that direct settlement is permissible only where special circumstances exist and that the Government's satisfaction on that question has decisive weight unless there is a complete absence of material). The opinion, as delivered, applies existing precedent and does not purport to create a novel legal principle beyond that construction; the decision enforces the principle that acquiescence bars relief where the alleged lack of jurisdiction is latent rather than patent.

Judges: Dutta, C.J. (writing); K.C. Sen, J. and M.C. Pathak, J. concurred. Final directive: "Petitions dismissed." (per the text of the opinion).

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Sikku Alias Sikku Haidar And Another v. The State Of Assam And Others Opposite Parties.

Dutta, C.J:— 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 Feburary 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 R. 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.

3. 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 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.”

4. 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 S. 155. There was at that time Rule 190A which read as follows:—

“No fishery shall be settled otherwise than by sale as provided in the preceding instructions except with the previous sanction of the Provincial Government.”

5. The Supreme Court held that this rule did no allow the Government to lift the rules 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 190A 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. After 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.”

6. In the case of Nuruddin Ahmed v. State of Assam, AIR 1956 Assam 48, the validity of this rule came to be considered by a Division Bench of this Court. It was held in that case that rule 12 was antagonistic to the spirit of Section 16 of the Regulation. Rule 12 was interpreted as giving arbitrary powers to the Government to make settlements of fisheries. It was pointed out that it was a colourable exercise of the rule-making power to make a rule like rule 12 and thereby make Section 16 of the Regulation infructuous. But in Ganga Ram Das v. Tezpur Kaibarta Co-operative Fishery Society Ltd., AIR 1957 SC 377, the validity of the rule 12 came up for consideration before the Supreme Court. It was held that an exception to settlement of fisheries by sale was made by this rule under which the State Government was empowered to settle fisheries otherwise than by sale. Rule 12 was construed by the Supreme Court to mean that the State Government had the unfettered discretion to settle fisheries directly if the circumstances of the case so warranted. It was further pointed out that the Government was the best judge to decide as to whether the circumstances so warranted or not. In view of this construction, it was held that Rule 12 was not repugnant to Section 16 of the Regulation.

7. Dr. Medhi submits that the question whether the rule gives unfettered and uncanalised power to the Government to settle fisheries directly was not considered by the Supreme Court. It is contended that under Rule 12 the Government can pick and choose any fishery for direct settlement and then arbitrarily settle it with anybody they like even at a loss of Government revenue. If this construction is given to the rule, undoubtedly it will be violative of Article 14 of the Constitution. But the construction given by the Supreme Court saves the rule. The rule means, according to this construction, that if special circumstances exist, the Government can make direct settlement. Secondly the Government is the best judge about the existence of special circumstances. Therefore, if the Government has the subjective satisfaction that special circumstances exist for giving direct settlement, the Government can do so. Whether a particular circumstance is a special circumstance or not warranting a direct settlement of a fishery is to be decided by the Government and Government's opinion will be final. But it should be remembered that the exercise of discretion, even on subjective satisfaction, is no exercise of discretion if there is complete absence of material to arrive at a satisfaction.

8. In the petition it is contended that no occasion arose for the Government in this case to exercise power given in Rule 12 and to take out the fishery from the ordinary procedure of settlement According to the petitioner, he learnt that respondent No. 4 was making secret attempts to get a direct settlement of the fishery in question from the Government. Thereupon the petitioner also filed an application for such a settlement. But the settlement was made with respondent No. 4. From the above it is quite clear that the petitioner acquiesced in the exercise of jurisdiction by the Government without raising any objection. It is not the petitioner's case that at that time he thought that the Government had jurisdiction and that it was only subsequently he found out that it had no jurisdiction.

9. Dr. Medhi submits that there can be no waiver of a Fundamental Right. But in the present case there is no question of any such waiver. The point is that a writ being a discretionary remedy, it will not be granted if the petitioner invited or acquiesced to the jurisdiction of the authority. Dr. Medhi, however, contends that as there was total absence of jurisdiction on the part of the Government to settle the fishery under Rule 12 no question of acquiescence can raise. But a distinction must be made between patent and latent lack of jurisdiction. Where the lack of jurisdiction is patent i.e apparent on the face of the proceedings, a party aggrieved is entitled to a writ even if he acquiesced to the exercise of the jurisdiction. Where, however, the lack of jurisdiction is latent i.e it depends on certain factors, acquiescence will disentitle a party to a writ. In S.C Prashar v. Vasantsen Dwarkadas, AIR 1956 Bom 530, Chagla, C.J delivering the judgment of a Division Bench of the Bombay High Court, observed that where the want of jurisdiction was patent, it became a matter of right for a party to challenge the jurisdiction. He emphasised that the want of jurisdiction must be patent for such a right. I respectfully agree with the above view.

10. In the present case there will be lack of jurisdiction of the Government only if there is complete absence of material on which an opinion can be formed as to the existence of special circumstances warranting exercise of power under rule 12. Such a jurisdiction is latent and a person acquiescing to it will not be entitled to a writ. The failure of the petitioner to raise objection before the Government when it wanted to exercise power under Rule 12, disentitles him to a writ. Dr. Medhi's contention that there are two methods of settling fisheries and that the Government can choose any of the methods at its sweet will, has no force. As I have said already, the procedure of direct settlement can be adopted only if in the opinion of the Government special circumstances warrant it. The regulation of settlement of fisheries by Rules is a reasonable restriction on the right to fish and therefore Rule 12 does not offend Article 19(1)(g) either. Civil Rule No. 144 of 1968.

11. The petitioner in Civil Rule No. 144 is a Co-operative Fishery Society registered under the Assam Co-operative Societies Act, 1949. The petitioner's case is that one Co-operative Society by name and style of Fishing Multipurpose Co-operative Society applied to the Government for direct settlement of Fishery No. 2 Chela Charkaria Fishery of North Lakhimpur of which the petitioner was the sitting lessee till 31-3-68. The petitioner getting information about the move of the above society also made an application to the Government for settlement of the fishery with it under R. 12 of the Fishery Rules. But the Government settled the fishery with opposite party No. 4. Hence the writ petition. The points of law raised in this petition are similar to those raised in Civil Rule No. 68 of 1968 and hence the said points are covered by what is stated above. It is, however, pointed out that the petitioner in this case withdrew his application before the settlement was made by the Government. But I do not think that it makes any difference. When the petitioner withdrew the application, he did not question the right of the Government to settle the fishery under Rule 12. Nor in his petition before us does he make any direct averment that no special circumstance existed for the Government to make settlement under Rule 12. In the circumstances, both the petitions are dismissed and the rules are discharged. There will be no order as to costs.

12. K.C Sen, J.:— I agree.

13. M.C Pathak, J.:— I agree.

14. Petitions dismissed.

Sikku Alias Sikku Haidar And Another v. The State Of Assam And Others Opposite Parties.

Concise Analytical Summary of the Opinion (Civil Rules Nos. 68 & 144 of 1968)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's (Appellant's) Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sikku Alias Sikku Haidar And Another v. The State Of Assam And Others Opposite Parties.

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