MEGHA PALAI Vs. EMPEROR

JUDGEMENT

(1.) The six petitioners have been found guilty under Section 3, Bengal Private Fisheries Protection Act, 1889 (Bengal Act, 2 of 1889) and they have been sentenced to a fine of Rs. 20 each by the learned Sub-divisional Magistrate of Puri. The case against these 6 petitioners was the following. It appears that there is a big sheet of water called Brundaban Sagar over the anabadi and rayati lands of certain villages, some of which are within the zamindary of the Raja of Parikud and some within the zamindary of what is known as the Bhingarpur estate and one Sona Debi. This expanse of water appears to be surrounded by embankments on all sides. But sometime in 1938 there were breaches in the embankments, and there was free egress and ingress of fish from Brundaban Sagar into the Chilka lake. The prosecution case was that the Raja of Parikud had the exclusive right to fish in the sheet of water which was on the villages within his zamindary; and similarly, the Bhingarpur estate and Sona Debi had the exclusive right to fish in the expanse of water which lay within their zamindary. The prosecution case further was that the petitioners had caught fish in that portion of the sheet of water which lay within the zamindary of the Raja of Parikud. An information was given to the police, and on that information the petitioners along with several others were put on trial with the result stated above.

(2.) On behalf of the petitioners the main point urged was that they had a customary right to fish in the waters of Brundaban Sagas and that, in any case, they were protected by the proviso to Section 3, Bengal Private Fisheries Protection Act, 1889. The learned Magistrate did not accept the plea of a bona fide claim of right which the petitioners put up, and he convicted the petitioners of the offence of fishing in private waters.

(3.) The main point urged before me on behalf of the petitioners is that they are protected by the proviso to Section 3 of the Act, and that they acted in the exercise of a bona fide claim of right. From the documentary evidence in the record it is clear that there was a previous dispute regarding the right of fishing in that portion of Brundaban Sagar which lay within the zamindary of the Bhingarpur estate. A complaint was filed and there was an enquiry and as a result of that enquiry it was found that the villagers had a right to fish in the said waters. The complaint filed by an employee of the Bhingarpur estate was dismissed. In view of that evidence which consisted of a report by a Police Officer, a petition of complaint and the order of the Sub-divisional Officer, it is clear to me that the petitioners caught fish in the waters of Brundaban Sagar in exercise of a bona fide claim of right. I do not think that it can be said that the claim of right which the petitioners, were putting up was a mere colourable pretence.