RAGHUNATH TALUKDAR Vs. SUB-DIVISIONAL OFFICER AND ANR.

JUDGEMENT

(1.) THIS appeal has been referred to the Special Bench by me as the questions of law raised in this appeal very often come up for consideration before this Court. I have had the advantage of reading the judgment of my lord the Chief Justice and my brother Dutta, J. But as I do not agree with the opinion expressed by them on the points raised and argued, I shall give my opinion separately.

(2.) THIS is an appeal under Section 147 of the Assam Land and Revenue Regulation (hereinafter called 'the Regulation') with Rule 11 of the Fishery Rules published under the said Regulation (hereinafter called 'the Rules') on behalf of one Raghunath Talukdar against an order of the Sub -divisional Officer, Barpeta who is impleaded as Respondent No. 1 in this appeal. The State Government selected Fishery No. 28 Barkana beel with Nos. 29 and 68 for settlement by tender. The Subdivisional Officer, Barpeta was accordingly directed to take steps for settlement of the said Fishery under the rules after inviting tenders. By a sale notice dated 22nd December, 1959 the Subdivisional Officer, Barpeta invited tenders for settlement of the aforesaid fishery, fixing the last date for submission of such tenders upto 8 P.M. on 3rd February, 1960.

(3.) I shall first take up the first point urged by Dr. Medhi that the provisions of Rule 45 of the Rules are mandatory. Reference at this stage may be made to certain provisions which may be relevant for the examination of the point Section 16 of the Regulation provides that 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 the Regulation, except as Provided in' the rules made under Section 155. This section makes it perfectly clear that in the fisheries proclaimed by the State Government no right can be conferred except in accordance with the provisions of the rules made under Section 155. On the 15th April, 1053 certain rules were framed by the State Government the exercise of the powers conferred under Sections 155 and 156 which are known as the rules, for the settlement of fisheries. Rule 12 of the said Rules provides that