1. This is an appeal by Bhogiram Namasudra, Chairman, Folashbari Namasudra Fishery Co-operative Society, Ltd., against an order made by the Additional Deputy Commissioner of Kamrup, dated 27-2-52 purporting to direct a settlement of Brahmaputra Fishery No. III (A) for the year 1952-53 with Respondent 1, Sondhan Das, Managing Director of Sualkuchi Fishermen Association, Ltd., for a sum of Rs. 23,100/-. The petitioner's case is that he was the lessee of the aforesaid Fishery for the previous year and was interested in holding the fishery for two years more. Under Rule 182, Chapter 10, Assam Land Revenue Regulation,--relating to settlement of Fisheries, the Deputy Commissioner should normally fix a date for the sale of all registered fisheries held under leases expiring on the last day of the current year and the procedure is laid down in the said Chapter as to how the sale is to be conducted and settlement made. The procedure prescribed is to make a settlement of a fishery as a result of the public auction but a variation of this practice is allowable only with the previous sanction of the Provincial Government, Here, in this case, the settlement was made by the Government direct with Respondent 1 after having considered the cases of five petitioners including the present appellant. The present settlement is made as a result of the Government's order dated 7-1-52. The Deputy commissioner or in his place the Additional Deputy Commissioner in this case makes a note in the Fishery Settlement Register on 27-2-52 in the following words:
'Settled direct by Govt. with the Sualkuchi Fishermen Association, Ltd at Rs. 23,100/- for the year 1952-53 vide their memo No. R. F. 106/51/12 dated 12th February, 1952.
Sd/- J.K. Datta,
A. D. C., Kamrup. 27-2-52.'
2. Mr. Choudhuri for the appellant has contended that the Government have no right to make a direct settlement of any fishery and the Deputy Commissioner or the Additional Deputy Commissioner in this case ought not to have carried out Government's order to that extent and made a note in the Fishery Settlement Register as quoted above which will prejudice the petitioner in the matter of getting a settlement for which he had applied. In the present appeal before me, the Government's order directing settlement of the Fishery is not directly challenged--nor is the Government made a party. All that is challenged is the order of the Additional Deputy Commissioner made on 27-2-52. That order by itself, if it is an order at all, in my opinion, does not amount to an order directing settlement or refusal to make a settlement with any of the parties. It is only a note in the remarks column of the Fishery Register showing that the Deputy Commissioner has had no chance of exercising his own discretion in the matter of settlement of the fishery the Government having already made the settlement by an order of 7-1-1952 which runs as follows:
'Government are pleased to settle the Brahmaputra Fishery No. IIIA in the Gauhati Sub-Division with the Sualkuchi Fishermen Association Ltd., at an annual revenue of Rs. 23,100/-(Rupees twenty three thousand one hundred) for the year 1952-53. Other applications are rejected.
Sd/- A. Bhattacharjee,
Secretary to the Government of
Assam, Revenue Department.
I find nothing untrue or illegal in the note made by the Additional Deputy Commissioner on 27-2-52 nor do I construe it as an order directing settlement under Chapter 10. The appellant, if at all, is aggrieved by the Government's order dated 7-1-52 against which no appeal is preferred nor the fact of settlement in pursuance of the Government's order challenged in a proper way.
3. There was a petition in this connexion under Article 226 of the Constitution of India before me, but there also, no case definitely is sought to be made out against the Government nor an allegation made that the Government acted without jurisdiction in the matter nor was the Government made a party to that petition.
4. In my opinion, the settlement was in pursuance of the Government's order and that order not having been sought to be set aside nor challenged I see no reason to express any opinion as to whether the Government have a right of direct settlement of a fishery or not.
5. The result is that the appeal fails and the records should go to the Lower Court immediately. Mr. D.N. Medhi, Government Advocate sought my permission to be given leave to appear in this appeal but the Government not having been made a party, I did not think it necessary to give him leave to appear in this matter.
6. There have been mutual allegations by the appellant and respondent 1 that the possession has been interfered with with regard to the fishery in spite of there being an order from this Court that none of the parties should exercise acts of possession pending the hearing of the appeal. It is, however, a matter in which it is not possible to come to a finding without an enquiry but in view of the fact that I am going to dispose of the appeal today I direct that the applications should go down to the Deputy Commissioner for making such enquiries as he might consider proper and for placing it before this Court in case he finds that there was any illegal possession affecting this Court's order by any of the parties.
7. The appeal is dismissed and the stay order vacated.