Venkatarama Aiyar, J.
1. This is a petition under Article 226 of the Constitution for issuing a 'writ of certiorari' or other appropriate writ to quash an order of the State of Madras dated 13-3-1951. The second respondent is the Rajah of Ramanathapuram, whose Zamindari was one of the estates permanently settled under Regulation 25 of 1802. On 1-7-1946 he granted a lease to the petitioners of the right to fish chanks in the Gulf of Mannar and Palks Bay opposite the coast of the Zamindari for a period of ten years on an annual rent of Rs. 14,000. The Legislature of the Province of Madras passed the Madras Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948), hereinafter referred to as the Act, abolishing the estates within the State of Madras and the Ramanathapuram Zamindari was notified in accordance with the provisions of that Act on 7-9-1949; and the result of that Notification was that under Section 3 of the Act the entire zamindari vested in the State of Madras.
Acting under Section 20 of the said Act, the State of Madras terminated by its proceedings dated 3-3-1951 the lease in favour of the petitioners dated 1-7-1946 and sent the following communication dated 13-3-1951 to them: 'The lease of chank fisheries off the coast of Ramanathapuram granted by the Rajah of Ramanathapuram to Messrs. A. M. S. S. V. M. & Co., Kilakkarai is cancelled under second provision (proviso?) to S. 20, Estates Abolition Act, the Estate Manager, Ramanathapuram, is requested to hand over the Chank Fisheries to the Government Fisheries Department,' The present application has been taken out by the lessees for quashing this order as unconstitutional and illegal. The State of Madras who is the first respondent contests the application, while the Rajah of Ramanathapuram, the second respondent, supports it.
On behalf of the petitioners, Mr. M.R.M. Abdul Karim urged the following contentions:
1. The Act, in so far as it relates to fisheries in the seas is beyond the competence of the Madras Legislature, as the seas are outside the territory of the State.
2. The Act is also incompetent as being legislation on interstate trade and commerce which is exclusively within the competence of the Union under Entry 42 of the Union List in Schedule 7 to the Constitution. 3. Even if the Act is a valid piece of legislation, the termination of the lease on 13-3-1951 is bad because three months' notice was not given as required by Section 20 of the Act.
2. It is necessary for a correct appreciation of the true legal position to relate the history and nature of the chank fisheries off the coast of Ramanathapuram which form the subject-matter of this application.
Between the main land of India forming the southernmost portion of it and the island of Ceylon which lies to the east and south of it, there lies a large expanse of sea water, the northern sector of which is termed the Palk Bay and the southern, the Gulf of Mannar. They are divided by the island of Rameswaram and a continuous line of coral reefs running east to west on which runs the causeway known as the Ramasethu or Adams Bridge, leading to the main land of Ceylon. The island of Rameswaram is separated from the main land of India by a narrow strait known as the straits of Pamban, 1350 yards broad. The Palk Bay is roughly 70 miles long and 50 or 60 miles broad and is bounded on the north and west by the Districts of Tanjore and Ramanathapuram which form part of the State of Madras, on the south by the Pamban Straits, island of Rameswarara which belongs to India and the Ramasethu and on the east by the island of Ceylon.
On the north-east it opens into the Bay of Bengal, the passage at that point not being more than 1/9th of the circumference of the Bay. Navigation in this gulf is difficult by reason of rocks, reefs and shoals of which it is full. The southern sector called the Gulf of Mannar runs southward from the Rameswaram-Ramasethu line and is bounded on the west by the Districts of Ramanathapuram and Tirunelveli which form, part of the State of Madras and in the east by Ceylon. In the south it opens into the Indian Ocean. The breadth of the gulf at the northern end is about 17 miles, while at the southern approach to the Indian Ocean the distance between Cape Camorin in India and Point De Galle in Ceylon is about 200 miles. The length of the Bay is about 130 miles. Thus, it will be seen that the Palk's Bay is practically land-locked and partakes of the character of inland waters and that the Gulf of Mannar in its northern portion off the coast of Ramanathapuram, which is what we are concerned with in this application, is of the same character.
3. From time immemorial, both these gulfs have been famous for their pearl fisheries and chank fisheries. The rocks and reefs in which they abound have furnished excellent breeding ground for pearl oysters. On the bottom of these gulfs are sand-beds of a special kind called 'Puchi Manal' which breed worms on which chanks thrive. Beds of pearl fish and chank fish are to be found in abundance scattered alt over the area and they are marked in maps prepared for the Fisheries Department. The chank beds are mostly at a depth seldom exceeding 50 feet, often less and some times more and they lie at varying distances from the shore, the farthest of them being 20 miles from the Indian Coast.
There are similar beds off the coast of Ceylon. The chanks, apart from their worth are sacred sankha, have considerable commercial value as they are largely used for ornaments in Bengal, Assam and Tibet; and pearl fisheries and chank fisheries have accordingly been from the earliest times important and lucrative trades in this area. The Sovereigns of the country considered themselves as the exclusive owners of the beds of pearl oysters and chanks, granted licences for their exploitation and levied royalty thereon. At the dawn of history the coastal area on the Indian side formed part of the Pandyan Kingdom. It appears from the writings of ancient writers like the authors of 'Periplus Erythraei Maris' (about 80 A. D.) and Ptolemy (about 140 A. D.) that a place called Korkai was the headquarters of the pearl fishery of the Pandyan Kings. Kalidasa mentions that the Pandyan King offered as his tribute 'superior pearls obtained from the sea at its confluence with Tambaraparani' (Raghuvamsa, Canto 4, verse 50).
In the middle ages Kayal became the centre of the pearl fishery and 'according to Friar Jordanus, no less than 8000 boats were employed in the Fisheries of Tinnevely and Ceylon' (District Gazetteer, Tirunelveli, Vol. I page 230). After the Pandyas, the Nayaks became the Sovereigns of the country and they recognised the title of Rajah of Ramanathapuram who claimed descent from ancient Royal Houses to the coastal territory and also granted to him the right of levying royalties on chank fisheries off the coast. The right of fishery over the rest of the Indian Coast was granted to the Dutch.
The Nawab of Arcot supplanted the Nayaks in the middle of the 18th century and in 1792 the East India Company succeeded to their rights. The Madras Permanent Settlement Regulation 25 of 1802 was then passed under which the Government entered into engagements with Zamindars fixing a permanent peshkush. The Zamindari of Ramanathapuram was one of the estates so settled and in fixing the peshkush the right of chank fisheries was included in the assets of the zamindar being the 8th item described as 'chank royalty'. In accordance with this Sanad, the successive proprietors of the Ramanathapuram Estate continued in enjoyment of the chank fisheries leasing the same from time to time. It may be mentioned that in 1803 the chank royalty of the Rajah was given as security to the Government for payment of peshkush and in 1874 it was attached for arrears thereof. In 1899 and 1900 the Government itself took a lease of these fisheries from the Rajah of Ramanathapuram. The income from the fisheries was at all times one of the valuable assets of the estate.
4. With this survey of the history and nature of the chank fisheries off the coast of Ramanathapuram, we may proceed to examine the contentions urged on behalf of the petitioners and the second respondent.
It is firstly argued that the Act in so far as it relates to the fisheries in the seas is extraterritorial in character and beyond the legislative jurisdiction of the State and that it is, therefore, void to that extent or at least void as regards fisheries beyond territorial waters. To this, the learned Advocate General replies firstly that the impugned Act is not a law in respect of fishing or fisheries in the seas, but in respect of land and land tenures, and that it is exclusively within the jurisdiction of the State and that secondly the State has power to legislate on fishing and fisheries within the territorial waters and that the fishing areas in question in this application have come to be recognised by reason of long possession and international recognition as part of the territorial waters.
5. The first point that arises for determination, therefore, is whether the Act is in substance a legislation in respect of land and land-tenure or is it to any extent a legislation on fishing and fisheries in the seas. The answer to this question must depend on the true nature and character of the legislation and to ascertain that, one must examine the provisions of the Act as a whole and find out whether in its pith and substance it is in respect of a matter within the competence of the Legislature.
This proposition is so well-settled that it will be sufficient to quote the following passages from the judgment of Gwyer C.J. In -- 'Subrahmaniam Chettiar v. Muthuswami Gounden'
'It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment, may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its 'pith and substance' or its 'true nature and character' for the purpose of determining whether it is legislation with respect to matters in this list or in that: -- 'Citizens Insurance Co. v. Parsons', (1882) 7 A C 96 (B); -- 'Russell v. The Queen', (1882) 7 A C 829 (C); --- 'Union Colliery Co. of British Columbia v. Bryden', (1899) A C 580 (D); -- 'Attorney General for Canada v. Attorney General for British Columbia', (1930) A C 111 (E); -- 'Board of Trustees of the Lethbridge Northern Irrigation District v. Independent Orders of Foresters', (1940) A C 513 (F). In my opinion this rule of interpretation is equally applicable to the Indian Constitution Act. On this point I find myself in agreement with the Madras High Court, and I dissent from the contrary view which appears to have been taken in a recent case by the High Court at Patna: -- 'Sagarmal Marwari v. Bhuthu Ram', : AIR1941Pat99 (G).'
6. This passage was approved by the PrivyCouncil in -- 'Prafulla Kumar Mukherjee v.Bank of Commerce Ltd., Khulna', AIR 1947 PC 60 (H). . '
7. Turning next to the Act, the preamblestates that
'it is expedient to provide for the repeal of the Permanent Settlement, the acquisition of the rights of landlords in permanently settled and certain other estates in the Province of Madras, and the introduction of the ryotwari settlement in such estates.'
Thus the declared object of the Act is the abolition of permanently settled estates and the introduction of ryotwari tenure. For carrying out this object several provisions have been enacted. On a notification under the Act,
'the entire estate (including all communal lands and porombokes; other non-ryoti lands; waste lands; pasture lands; lanka lands; forests; mines and minerals; quarries; rivers and streams; tanks and irrigation works; fisheries; and ferries), shall stand transferred to the Government and vest in them free of all encumbrances.' (Section 3(b).
Provision is then made for the issue of ryotwari pattas and for recognition of certain rights. Then follows provisions for determining the compensation payable to the proprietors. Section 37 provides that it should be calculated with reference to basic annual sum; and Section 27(iv) provides that the basic annual sum for the zamindaries should include
'one-third of the ayerage net annual miscellaneous revenue derived from all other sources in the estates specified in Section 3, Clause (b).'
That the provisions of the Act aforesaid form one comprehensive scheme for the abolition of the estates and that the legislation is both in its purpose and in its effect one relating to land and land tenures cannot be disputed. Does it affect the validity of that legislation that the abolition of the Zamindari of Ramanathapuram which is within the competence of the State Legislature involves fishery rights over the seas comprised within the assets of the Zamindari?
With reference to similar questions arising under the British North American Act, 1867, the Judicial Committee have repeatedly held that when a subject is within the legislative competence of a State, it is no objection to the validity of a law on that subject, that it incidentally trenches on subjects which are not within its jurisdiction.
8. in -- '(1930) A C 111 (E)', the question arose whether a fishing legislation of the Dominion of Canada was within its legislative competence or whether it invaded the domain of the Provincial Legislature. Lord Tomlin observed that in deciding whether a particular piece of legislation fell within the jurisdiction of one Legislature or the other, regard must be had to four principles as established by the decisions. The third of them which is material for the present case was stated in these terms:
'It is within the competence of the Dominion Parliament to provide for matters which, though otherwise within the legislative competence of the Provincial legislature, are necessarily incidental to effective legislation by the Parliament of the Dominion upon a subject of legislation expressly enumerated in Section 91: see -- 'Attorney General of Ontario v. AttorneyGeneral for the Dominion of Canada', (1894) AC 189 (I) and -- 'Attorney General for Onta-.rio v. Attorney General for the Dominion of Canada', 1896 AC 348 (J).'
There are several instances in which legislation has been upheld on this principle, though it incidentally trenched on a subject which was outside the jurisdiction of the Legislature. Thus, in -- 'Grand Trunk Railway of Canada v. Attorney General of Canada', (1907) AC 65 (K), the Dominion which had the right to legislate on Railways enacted a law that a Railway company had no right to enter into contracts with its servants excluding its liability to pay damages for negligence. It was contended that this was legislation on civil rights which was within the exclusive domain of the provinces and therefore, beyond the competence of the Dominion Legislature, in overruling this contention Lord Dunedin observed as follows:
'The true question in the present case does not seem to turn upon the question whether this law deals with a civil right which may be conceded--but whether this law is truly ancillary to railway legislation.........It is truethat, in so doing, it does touch what may be described as the civil rights of those employees. But this is inevitable......'
In -- 'Ladore v. Bennett, 1939 A C 468 (L), the question was as to the validity of a Municipal Board Act, 1932, passed by the legislature of the Province of Ontario. The Act provided for insolvent municipalities being dissolved and a fresh body being created by amalgamation and there were provisions for issuing debentures in favour of the creditors of the dissolved, municipalities carrying interest at certain rates. The creditors were under an obligation to accept these debentures in satisfaction of their debts. The validity of the Act was impugned on the ground that it was in substance a law for the administration of insolvent municipalities; that it affected creditors outside' the State who had advanced loans to the municipalities and that it reduced the interest payable to them; that in respect of all these matters it was only the Dominion Parliament that had the exclusive right to legislate; and that, therefore, the statute was 'ultra vires'.
The contention in support of the legislation was that it was in respect of municipalities and that was a subject within the exclusive jurisdiction of the Provinces. Lord Atkin in upholding the legislation stated that as the Province had the exclusive legislative power in relation to municipalities situated therein, it had the power to enact provisions for their dissolution and re-incorporation and for the settlement of the debts as ancillary to that. The fact that the municipality was insolvent or that the outside creditors were affected did not affect the validity of the legislation. As regards interest
'such legislation, if directed 'bona fide' to the effective creation and control of municipal institutions, is in no way an encroachment upon the general exclusive power of the Dominion Legislature over interest.'
In -- 'Abitibi Power and Paper Co. v. Montreal Trust Co.', AIR 1944 PC 7 (M), the facts were that while an action by a mortgagee against a company to enforce the security by sale of the company's properties was pending, an unsecured creditor obtained orders for its winding up. The Province of Ontario then passed a Moratorium Act staying all proceedings, the object being the reconstruction of the Company. The question was whether this legislation was 'intra vires' of the powers of the Province. It was contended on behalf of the mortgagee that this amounted to legislation on bankruptcy and that it was only the Dominion Parliament that could enact laws on that subject. in overruling this contention the Judicial Committee observed that the pith and substance of the Moratorium Act was to regulate property and civil rights within the province and was, therefore) 'intra vires'.
This question again came up for consideration before the Privy Council in -- 'AIR 1947 PC 69 (H)'. The Act which was under challenge was the Bengal Money-lenders Act, 1940, which limited the amount recoverable for principal and interest, by a money-lender on this loan. Certain Banks which had advanced monies on the seeurity of promissory notes impugned the validity of the law on the ground that it was only the Federal Legislature that had the competence to legislate on banking and on negotiable instruments and that, therefore, the law in question was 'ultra vires' of the powers of the Bengal Legislature. Lord Porter held, reversing the decision of the Federal Court, that the Act was 'intra vires' because in pith and substance it was legislation on money-lending which was within the competence of the Provincial Legislature & that it was not invalid for the reason that it trenched on banking which was a Federal subject because that was incidental and ancillary to a legislation on money-lending.
The following observations may be quoted: 'Three questions therefore arise, viz.,
(1) Does the Act in question deal in pith and substance with money-lending?
(2) If it does, is it valid though it incidentally trenches upon matters reserved for the Federal Legislature?
(3) Once it is determined whether the pith and substance is money-lending, is the extent to which the Federal field is invaded a material matter?
(1) in truth, however, the substance is money-lending and the promissory note is but the instrument for securing the loan. -
(2) The second is a more difficult question and was put with great force by counsel for the respondents. The principles, it was said, which obtain in Canada and Australia have no application to India.........In their Lordships' opinion this argument should not prevail. To take such a view is to simplify unduly the task of distinguishing between the powers of divided jurisdictions. It is not possible to make so clean a cut between the powers of the various legislatures; they are bound to overlap from time to time............
Subjects must still overlap and where they do, the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with.
(3) Thirdly, the extent of the invasion by the Provinces into subjects enumerated in the Federal List has to be considered. No doubt it is, an important matter, not as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance so far into Federal territory as to show that its true nature is not concerned with Provincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money-lending but promissory notes or banking?
Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content. This view places the precedence accorded to the three lists in its proper perspective. No doubt where they come in conflict List I has priority over Lists III & II & List III has priority over List II but the question still remains, priority in what respect? Does the priority of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may incidentally affect any item in its list or in each case has one to consider what the substance of an Act is and, whatever its ancillary effect, attribute it to the appropriate list according to its true character? in their Lordships' opinion the latter is the true view.........Whether it beurged that the Act trenches upon the Federal List by making regulations for banking or promissory notes, it is still an answer that neither of those matters is its substance and this view is supported by its provisions exempting scheduled and notified banks from compliance with its requirements.'
In accordance with the above principles it must be examined whether the Act in respect of fisheries in the sea is incidental to effective legislation on a subject which is within the competence of the Madras Legislature or something independent of it and outside its jurisdiction. It has been already seen that the right to fisheries in the Palk's Bay and the Gulf of Mannar belonged to the successive sovereigns of this country and that right came to be vested in the Rajah of Ramanathapuram, under a grant from Nayak Rulers of Mathurai. When the British Government effected a permanent settlement in accordance with Regulation 25 of 1802 they affirmed the grant and included the royalty on the chanks as one of the heads of revenue for calculating peshkush and thus the right to chank fishery came to be annexed to the Zamindari of Ramanathapuram, The income of the Rajah under this head is to be included in assessing the basic annual sum under Section 27(iv) and that will go to swell the compensation under Section 37.
The true position, therefore, Js that the right to the fishery in the seas came up into the picture only as forming part of the assets included in the Zamindari under the Sanad issued under the Permanent Settlement Regulation of 1802 and that it had no existence apart from it. When that Regulation was repealed and the estate abolished by a competent Act of legislature, the rights appurtenant thereto including the right to the fisheries in the sea came to an end with it and that is clearly incidental to the legislation. It is not without significance that the question of the right to fisheries in the seas arises only with reference to the zamindari of Ramanathapuram and that itself is sufficient to show that it is only incidental and is not the pith and substance of the legislation. (9) It will moreover be difficult to describe the Act 'by any stretch of language as a law on fishing and fisheries. It does not purport to be one, nor does it contain many provisions relating to fishing or fisheries such as are usual in enactments on the subject. It does not prescribe the conditions on which licences for fishing could be granted'. It does not contain regulations as to, when and where fishing operations could be carried on. It does not prescribe what vessels could be permitted in sea fishing as was provided in the statute considered in --
'Maritime National Fish Ltd v. Ocean Trawlers Ld', (N); or what class of diving equipment could be used in fishing as was enacted in the statute discussed in -- 'L. Skiriotes v. Florida', (1940) 313 U.S. 69 (O). Act 4 of 1897 of the Indian Legislature is an instance of an enactment on fisheries. The Act now in question has merely the effect of terminating the title of the Rajah of Ramanathapuram to the sea fisheries and it is no more a law on fishing and fisheries than is an Act providing for registration of sale deeds relating to lands, a legislation on agriculture,
10. Mr. K.S. Sankara Ayyar for the second respondent contended on the strength of the judgments of the Federal Court in -- 'Hindu Women's Rights to Property Act, 1937, in The matter of , and --'Umayal Achi v. Laxshmi Achi' , that when a law is in part outside the competence of the Legislature, that must to that extent' be declared void. The question that was raised in these cases was whether the Hindu Women's Rights to Property Act, 18 of 1937 which was a Central Act was 'intra vires' of the powers of the Federal Legislature. The Act was passed for giving better rights to women and that was sought to be done by providing that the estate of a deceased Hindu should devolve in the manner provided therein. Under Entry 21 of the Provincial List 'devolution of agricultural land' was a subject within the exclusive jurisdiction of the Province.
It was accordingly held by the Federal Court that Act 18 of 1937 providing for devolution of the estate generally was beyond the competence of the Central Legislature in so far as it related to agricultural land. It will be noticed that while the subject-matter of the Act now under challenge is land and land tenure which is exclusively within the competence of the Province, the right to fisheries in the seas coming in only as incidental and ancillary to It, the subject-matter of legislation in the Hindu Women's Rights to Property Act, 18 of 1937 was professedly the devolution of estates of the deceased Hindus and to the extent that it comprised devolution of agricultural land it was beyond the competence of the Federal Legislature.
The distinction between the two classes of cases might be stated thus: If the law is in respect of a subject within the exclusive jurisdiction of the Legislature, it is valid even though in the result it might trench incidentally on subjects beyond its competence. The decisions in -- '(1907) A.C. 65, (K)', -- '1939 A. C. 468 (L)', -- 'AIR 1944 P.C. 7 (M)', and -- 'AIR 1947 P,C. 60 (H)', are illustrations of this rule But if the law is on a subject which is partly within the competence of the Legislature and partly not, then if the two portions are inseparable, the whole legislation will be bad, and if separable, the portion which is within the competence of the Legislature will alone stand and the other portion will be void. In such a case that portion which, is beyond the competence cannot be upheld as ancillary and incidental to the portion which is within its competence. , and , furnish illustrations of this principle. As between the two categories of cases, the Act now in question must be clearly held to fall within the former category as the subject-matter of the legislation is one wholly within its competence and it is only Incidentally that the right to fisheries in the seas is involved and it must be upheld as being 'intra vires' of the powers of the Madras Legislature.
11. in this view it is unnecessary to decide whether the impugned Act has extra-territorial operation and was, therefore) beyond the competence of the Madras Legislature. But as the question has been argued fully and as the matter might be taken before a superior court, we shall express our opinion on this question. It is not disputed by the learned Advocate General that the Legislature of the Madras State is competent to pass laws having operations only within the State. That is enacted in Section 99, Government of India Act, 1935, which provides that 'a Provincial Legislature may make laws for the province or any part thereof' and under that section it is only the federal Legislature that has the competence to enact laws having extra-territorial operation. These provisions have been re-enacted in Art. 245 of the Constitution. The point for determination therefore is whether the fishing waters which are the subject matter of this application form part of the Province of Madras.
The contention of Mr. M.R.M. Abdul Karim on behalf of the' petitioners is that the territory of a State comprises its lands upto its frontiers, that the seas form no part of such territory and that, therefore) the legislative jurisdiction of the States must stop, like a witch, at the waters of the sea. This argument does not take into account the well-established distinction between territorial waters and the open sea beyond territorial waters and would posit that all legislation relating to fisheries whether within or without the territorial waters would be void. Mr. K.S. Sankara Aiyar, the learned advocate who appeared for the second respondent, however, did not dispute the validity of the legislation in so far as it related to the territorial waters; his contention was that the legislation extends to waters far beyond what is recognised as the limits of territorial waters and that, therefore, it was void.
Now the entire foundation for the argument on behalf of the petitioners is that the territory of a State is co-extensive with its land and that where the land geographically ends, there the jurisdiction of the Legislature ends. But that, however, is contrary to the well accepted doctrines on the subject. Thus, it is observed in Oppenheim's International Law, 7th Edn. Vol. I at page 415:
'The territory of a State consists in the first place of the land within its boundaries. To this must be added, in the case of a State with a sea coast, certain waters which are within or adjacent to its land boundaries, and these waters are of two kinds -- --national and territorial: (i) 'National waters.' These consist of the waters in its lakes, in its canal, in its rivers together with their mouths, in its ports and harbours, and in some of its gulfs and bays ............ .........
(ii) 'Territorial waters'. These consist of the waters contained in a certain zone or belt, called the maritime or marginal belt, which surrounds a State and that includes a part of the waters in some of its bays, gulfs, and straits'
and the learned author adds 'that the territorial waters are as much inseparable appurtenances of the land as are the territorial subsoil and atmosphere'.
Hyde on International Law, 2nd Edn. Volume1, page 452 after noting that the marginal seas'bore such a relation to the nearest land asto be regarded as appurtenant to it' observedthat it had come to be recognised.
'that a State was capable of substantially occupying a narrow rim of the sea adjacent to its ocean coasts, and of dealing with it, for most purposes, as though it were a part of the national domain' and that it could
'exercise a right of control over such marginal sea within certain definite limits and treat it for most purposes as a part of its erritory.' Messrs. Higgins and Colombos on International Law of the Sea have the following on the subject:
'Notwithstanding, the principle of the freedom, of the seas, there are certain portions of the sea along a State's coasts which are universally considered as a prolongation of its territory and over which its jurisdiction is recognised.' The learned authors then proceed to discuss the several views which have been advanced as to the true nature of the rights which a State possesses over its maritime belt and observe: '
'With some it is an actual ownership ('dominium') because it implies in certain cases an exclusive enjoyment very characteristic of ownership, especially in the matter of fishing and pilotage; others treat it as a right of limited sovereignty conferring only a right of jurisdiction on the littoral State.' The better view according to them is that the right which the State possesses is one 'of jurisdiction or qualified sovereignty', the reason being that during times of peace other nations possess certain rights over the territorial waters such as peaceful navigation and that that could not be reconciled with the theory of ownership.
Oppenheim, however, favours the contrary opinion and observes: 'that the universally recognised fact of the exclusive right of the littoral State to appropriate the natural products of the sea in thecoast waters, especially the use of the fisherytherein, is consistent only with the territorialcharacter of the maritime belt. The argument............that, if the belt is to be considered a part of State territory, every littoralState must have the right to cede and exchange its coast waters, can properly be metby the statement that territorial waters ofall kinds are inalienable appurtenances of thelittoral and riparian States.'
12. Mr. M.R.M. Abdul Karim relied stronglyon the decision in the -- 'Queen v. Keyn', (1877) 2 Ex. D. 63 (R) in support of his contention thatthe territorial limits of a State do not take inthe marginal sea. in that case the accused wasa German in command of a German vessel called the 'Franconia' and it ran into a Britishsteamer called the 'Strathelyde' within territorialwaters and as a result, a passenger called Youngwas drowned. The accused was charged withman-slaughter at the Central Criminal Court.The point for decision was whether that courthad jurisdiction over an offence committed by aforeigner within territorial waters.
The determination of that question depended on the fact whether the Admiralty Court to which it was the successor, had jurisdiction over the cause. It was held by the majority that it had not. The law on the subject of territorial waters was elaborately considered by the Judges and the petitioners rely upon various observations contained therein. But it must be noticed that the question for determination was not about the title of the State to the territorial waters or of the powers of the Legislature to enact laws with reference thereto, but only of the jurisdiction of the courts.
In -- 'Manchester v. Commonwealth of Massachusetts', (1890) 139 U. Section 240(S), the effect of this decision was thus stated by Blatchford J.:
'There the question was not as to the extent of the dominion of Great Britain over the open sea adjacent to the coast, but only as to the extent of the existing jurisdiction of the Gourt of Admiralty in England over offences committed on the open sea; and the decision had nothing to do with the right of control over fisheries in the open sea or in bays of arms of the sea. In all the cases, cited in the opinions delivered in -- '(1877) 2 Ex. D. 63 (R)' wherever the question of the right of fishery is referred to, it is conceded that the control of fisheries, to the extent of at least a marine league from the shore, belongs to the nation on whose coast the fisheries are prosecuted,'
'We think it must be regarded as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tide-waters is a marine league from its coast; ............and that included in this territorialjurisdiction is the right of control over fisheries, whether the fish be migratory, free-swiming fish, or free-moving fish, or fish attached to or embedded in the soil.'
In -- 'Secretary of State v. Chellikani Ramarao', AIR 1916 PC 21 (T), where the question was as to the title of the Crown to islands formed within territorial waters, Lord Shaw has the following observations on the decision in the --'(1877) 2 Ex. D. 63 (R):
'It should not be forgotten that the Franconia case had reference on its merits solely to the point as to the limits of Admiralty jurisdiction; nothing else fell to be there decided. It was marked as an extreme conflict of judicial opinion, and the judgment of the majority of the court was rested on the ground of there having been no jurisdiction in former times in the Admiral to try offences by foreigners on board foreign ships whether within or without the limit of three miles from the shore.'
With reference to the nature of the right possessed by the State over territorial waters he observed:
'It should bo added, with reference to the suggestion that the territory of the Crown ceases at low-water mark, and that the right over what extends seawards beyond that is merely of the nature of jurisdiction or the like, that there are manifest difficulties in seeing what are the grounds for this in principle.'
Whatever theory might ultimately find acceptance with the family of nations as to the true basis of the right which a State possesses over territorial waters, there, cannot be any doubt that with reference to the rights of fishery, the marginal belt must be regarded as part of the territory of the littoral State. The contention of the petitioners that the limits of a State extend only to its lands and that the rights of fishery over the sea, even if they be within territorial waters, are extra-territorial in character must accordingly be overruled.
13. The next question to be determined is how far the territorial waters extend into the sea and whether the fishing waters concerned in this application are within those limits. There has been some divergence of juristic opinion on the extent of the marginal waters. Various tests have from time to time been propounded for defining them such as the range of cannon-shot, the limit of visual horizon and so forth. This was one of the three subjects discussed in the Hague Codification Conference, 1930, which ended without any agreement being reached It cannot, therefore, be said that the law on the subject is finally settled.
Hyde on International law, volume I, pages 464-465 remarks:
'There has long been a disposition on the part of some publicists of distinction to advocate an extension of three marine miles as the limit of territorial waters.'
Oppenheim on International Law after statingthat the three-mile limit has the support of alarge majority of States observes:
'Although the three-mile limit of territorial waters must still be regarded as the rule of International Law on the subject, it is a rule which is in need of modification in relation to the various interests involved.'
14. Mr. K.S. Sankara Aiyar, for the second respondent, argues that in the Territorial Waters Jurisdiction Act, 1878, and in subsequent legislations Great Britain had adopted the rule that the marginal belt extended only to three miles and that the words 'territorial waters' both in the Government of India Act and in the Constitution should be construed in accordance with the views held by the British Government and limited to three miles. It is no doubt a reasonable construction. But the rule cannot in its simplicity be adopted in this case because the marginal belt does not open into the ocean, but is screened by a row of islands lying in close proximity to the shore beyond the territorial waters and further on there are landlocked and inland bays bounded by the island of Ceylon. How the existence of islands might affect the limits of territorial waters is thus stated by Higgins and Columbus: 'Where an island is therefore situate within the three-mile limit, the belt of waters round it will constitute territorial waters. This belt will be three miles wide and will be measured from low-water mark following the sinuosities of the island, if the island is more than three, but-not more than six miles from the coast, then the whole extent of waters would be territorial since it would be inadvisable to allow any small strip of high seas between the coast and the island. Where the island is more than six miles from the shore, but only slightly so, then it would appear reasonable to permit a State to claim a small extension of its marginal belt in order to establish a uniform regime of its territorialwaters.' A look at the map of the locality in Nelson'sMathurai District Gazetteer shows that there isa ring of islands off the coast of Ramanathapuram within a distance of about 6 miles andif the facts are fully investigated it might wellbe that the fishing area in question is withinterritorial waters in accordance with the aboverule.
15. Then, there is a further fact that we are dealing with a marginal belt emerging into the open sea. The Palks Bay is, as already mentioned, landlocked except for a small opening in the north-east. It has been observed of such bays that
'it is not so easy to lay down a definite rule on the limit of territorial waters in the case of bays as in the case of the marginal sea. Considerations based on historical and prescriptive grounds come into play when the territorial extent of bays and gulfs is examined' (Higgins and Columbus on International Law of the Sea at page 111).
The learned authors then state that when bays are bounded by the territory of the same State on both sides the six-mile rule might be adopted but that
'this rule is subject to the exception that on historical or prescriptive grounds, or for reasons based on the special characteristics of a bay, the territorial State is entitled to claim a wider belt of marginal waters, provided that it can show affirmatively that such a claim has been accepted expressly or tacitly by the great majority of other nations.' (Vide also observations of Hyde on International Law, Volume I, page 46). The rule that effective occupation of a bay by one State and acquiescence in it by other States furnishes a ground of title to it was adopted fcy the Privy Council in -- 'Direct United States Cable Co. v. Anglo-American Telegraph Co.', (1877) 2 AC 394 (U). The Bay that was in question there was the Conception Bay which penetrates into Newfoundland and is an extensive stretch of sea with an entrance 20 miles wide opening into the Atlantic Ocean. The Legislature of Newfoundland had enacted a law granting certain exclusive rights to the respondents in the Bay and the contention of the appellants was that the State had no legislative jurisdiction beyond the territorial waters and that in so far as the Statute purported to confer exclusive rights beyond those waters, it was void. in holding that the bay had been under the effective occupation of the State for a long time and therefore must be considered to be part of its territory, Blackburn J. observed: 'It seems generally agreed that where the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay it is part of the territory; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation; some suggesting therefore a width of one cannon shot from shore to shore, or three miles; some a cannon shot from each shore or six miles; some an arbitrary distance of ten miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of Newfoundland..................It does; not appear to their Lordships that jurists and text writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay. is or is not a part of the territory of the State possessing the adjoining coasts; and it has never, that they can find, been made the ground of any judicial determination. If it were necessary in this case to lay down a rule the difficulty of the task would not deter their Lordships from attempting to fulfil it. But in their opinion it is not necessary so to do. It seems to them that, in point of fact, the British Government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to show that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country would be very important.'
The question has been considered by this Court with reference to the very subject-matter which is now in dispute. In -- 'Annakumaru Pillai v. Muthupayal', 27 Mad 551 (V), the facts were that a lessee of the Chank fisheries from the Rajah of Ramanathapuram complained that the accused had fished chanks in the area leased to him and had thereby committed theft. The point for decision was whether the Rajah could lay any claim to fisheries beyond the territorial waters. Subrahmania Ayyar Offg. C. J. after remarking that the limits of territorial waters were not settled in International Law, referred to the principle enunciated in -- '(1877) 2 AC 394 (U)' that the occupation of a bay for a long time by one State and the acquiescence therein by other States, were sufficient to support the title of that State to the Bay, and observed as follows:
'Now the question is whether the circumstances of the present case warrant the view that those parts of the sea which contain beds of chank and beds of pearl oyster forming the subject of fishery operations therein, come within the exception already adverted to. The beds referred to lie all along the Indian coasts as well as the coast of Ceylon in the Gulf of Mannar. This gulf is no doubt quite open towards the south, but is otherwise almost wholly surrounded by land.' After referring to the continuous occupation of the pearl fisheries and chank fisheries by successive sovereigns of the country from the earliest times, the learned Judge concluded with the following observations:
'To say the least, the parts of the sea falling between the respective coasts and the lines opposite each connecting the extreme points seawards of the limits of the fisheries in question, are British territorial waters.' Russell J. differed and the matter was heard by another Bench who agreeing with Subrahmania Ayyar Offg. C.J. observed: 'We do not think that Palk's Bay can be regarded as being in any sense the open sea and therefore outside the territorial jurisdiction of His Majesty. We regard it rather as an integral part of His Majesty's dominions, the portions adjacent to India being within the jurisdiction of the Indian authorities, and the portion adjacent to Ceylon being within the jurisdiction of the authorities of that place;' and that the chanks which were the subject of theft
'were taken, not from the bed of the high seas, but from an arm of the sea which is part of the territory of British India which has been in possession of the Crown from, time immemorial.' This view is in accordance with the opinions field by writers on International law. Vattel in his 'Droit des gens', Vol. I, Chap. 23 observed:
'Who can doubt that the pearl fisheries of Bahrein and Ceylon may be lawful objects of ownership?' The 'Ceylon fisheries' refer to the pearl and chank fisheries in Palk's Bay and the Gulf of Mannar. Westlake in his work on International Law, 2nd Edn. Vol. I at pages 190-191 remarked: 'The case of the pearl fishery is peculiar, the pearls being obtained from the sea bottom by divers, so that it has a physical connection with the stable element of the locality. When carried on under the State protection, as that of the British island of Ceylon or that in the Persian Gulf which is protected by British ships in pursuance of treaties, it might be regarded as an occupation of the bed of the sea.'
16. It was argued for the petitioners and the second respondent that in -- '27 Mad 551 (V)', though Subrahmania Ayyar Offg. C.J. held the view that both Palk's Bay and the Gulf of Mannar stood on the same footing, the Bench which ultimately decided the case confined its decision to Palk's Bay and that it cannot be taken as authority with reference to the Gulf of Mannar. But it must be noted that the Ramanathapuram coast forming part of the Gulf of Mannar does not, as regards its configuration, character and size, differ from the Palk's Bay to the north of it. The principle of effective occupation and acquiescence by the other States is as much applicable to it as to the other, the successive Sovereigns of the country having dealt with the fisheries in both the waters as one.
The writers on International Law have also treated them as one subject-matter under the title 'Pearl Fisheries of Ceylon'. Reference must also be made to the following observations in the decision of the Bench in -- '27 Mad 551 (V)' bearing on this point:
'In order to prevent misapprehension we may add that if the beds from which the chanks were taken had been off the coast of Ramnad in the Gulf of Mannar (as supposed by the Judges who first heard the petition) instead of in Palk's Bay, our decision would have been the same, since the evidence of effective occupation of the chank beds in both localities is very similar.'
In view of these authorities, it must be held that the fishing areas involved in this petition are within the territorial waters of the State.
17. It was finally argued that even on this conclusion the impugned Act was 'ultra vires' because it was only the Centre and the Union and not the State that had the competence to legislate on territorial waters. Turning now to the Government of India Act, 1935, it is conceded that there is nothing therein which supports the contention of the petitioners. On the other hand, an examination of the relevant provisions of that Act leads to the conclusion that it was the States that had the power to legislate on territorial waters. Section 99(1) of the Act provides that the Federal Legislature may make laws for the whole or part of India and this of course is with reference to the subjects over which it has legislative competence as set out in lists 1 and 3 in the 7th schedule.
Now, the only entry bearing on this subject in these lists is entry 23 in the Federal list which is 'fishing and fisheries beyond territorial waters'. Entry 24 in the Provincial list is 'Fisheries'. Reading the two entries together if is clear that the States have the competence to legislate generally on fisheries and that it is only fishery and fishing beyond territorial waters that are excepted from their jurisdiction. Therefore, Act 26 of 1948 will be 'intra vires' of the powers of the Madras Legislature in so far as fishing in territorial waters is concerned.
It must further be noted that Section 99(1) provides that the Federal Legislature can make laws for the whole or any part of British India and under Section 311 'British India' is defined as meaning 'all territories for the time being comprised within the Governors' provinces and the Chief Commissioners' provinces.' The result then is that if a territory does not belong to any province, it does not form part of British India and if territorial waters do not belong to the Provinces, the. Centre will have no legislative jurisdiction either. The true position is that over the same territory the Province has powers of legislation in respect of subjects enumerated in list 2 and the Centre over those mentioned in List 1 with a concurrent power over the subjects set out in List 3. In this view, the territorial waters, if they belong to British India, must belong to the several littoral States from which the marginal sea takes off; and under Entry 24 of the Provincial List, it is only the Provinces that have competence to enact laws with reference thereto.
18. It was next argued for the petitioners that whatever be the position as regards the validity of Act 26 of 1948 and of the Notification issued thereunder on 7-9-1949 under the Government of India Act of 1935, when the notice dated 13-3-1951 which is what is assailed here was issued, the Constitution of India had come into force; that under Article 297 thereof me territorial waters had come to be vested in the Union and that the notice issued thereafter was beyond the competence of the Madras State. The fallacy underlying this contention is that the assumption that the notice is in the same position as a Statute and its validity must be judged as if it were a law passed on that date. But that, however, is not the correct position. A law for purposes of Articles 245 and 246 is an enactment passed by a legislative body. It does not include a Notification by the Government. The extended definition of law as comprehending Government Notifications under Article 13(3)(a) of the Constitution is only for the purpose of that part. The correct position is that the property having already vested in the Government, they are entitled to take all steps which owners of properties are entitled to take wherever the properties might be situate and the notice dated 13-3-1951 is within their rights as owners. And, further, there is no warrant for the contention that under the Constitution the territorial waters vest in the Union. Article 297 on which this contention is based runs as follows:
'All lands, minerals and other things of value underlying the ocean within the territorial waters of India shall vest in the Union and be held for the purposes of the Union.' Under the provision, what vests in the Union is the bed of the sea beneath the territorial waters and not the waters themselves and in law the two do not stand in the same position. The sea-bed belongs to the littoral State absolutely in the same manner as its lands. It has the fullest dominion over it; it alone is entitled to the minerals therein, and it is entitled to construct tunnels thereunder. Messrs. Higgins and Colombos on International Law of the Sea observe as follows:
'It is now generally admitted that the bed of the waters and the subsoil beneath both the territorial and interior waters belong, to an unlimited extent, to the State which is sovereign of the territory on the surface. It therefore possesses the right to carry out the exploitation of both the surface and its subsoil by tunnelling or mining for coal and other minerals.' The territorial waters of a State, however, are unlike the sea-bed, subject to certain rights in favour of other nations such as peaceful navigation and that is the reason why writers on International Law are, as already seen, not agreed whether the rights of the littoral State over those waters are in the nature of dominion or imperium. Therefore, it cannot be said that Article 297 which vests sea-beds in the Union Government has also the effect of vesting territorial waters in them.
On the other hand, the provisions in the Government of India Act bearing on this Question, viz., Entry 23 in the Federal List and Entry 24 in the Provincial List, have been re-enacted in the Constitution as Entry 57 in the Union List and Entry 21 in the State List. Article 1 of the Constitution enacts that the territory of India shall comprise the territories of the States and this corresponds to the definition of 'British India' in Section 311, Government of India Act, 1935. There may be some difficulty in reconciling this Article with 'Article 297. But that question, however, does not arise here.
As regards the territorial waters, therefore, the position under the Constitution remains what it was under the Government of India Act. Even if we came to a different conclusion on this point, we should still hold that Entry 21 in the State List is sufficient to clothe the State Legislature with powers to enact laws in respect of fisheries in territorial waters, notwithstanding that they vested in the Union, as observed in --'Attorney General for the Dominion of Canada v. Attorney General for the Provinces of Ontario, Quebec and Nova Scotia' (1898) AC 700 (W), 'it must also be borne in mind that there is a broad distinction between proprietary rights and legislative jurisdiction. The fact that such jurisdiction in respect of a particular subject-matter is conferred on the Dominion Legislature, for example, affords no evidence that any proprietary rights with respect to it were transferred to the Dominion. There is no presumption that because legislative jurisdiction was vested in the Dominion Parliament proprietary rights were transferred to it.' On this principle, there is no need to determine whether the right to the territorial waters vests in the States; it is sufficient that the power to legislate on fisheries therein is granted to them.
19. Counsel for petitioners relied on the decision in -- 'United States v. California', (1946) 91 L. Ed. 1889 (X) as supporting his contention that the right to legislate on territorial waters rests with the Centre and not with the State. But there, the facts were that the State of California had granted leases of petroleum and other minerals deposited in the sea-bed in territorial waters. The Government of the United States claimed that the sea-bed with its minerals was vested in them and that therefore the State had no right to deal with them. The contention on behalf of the State was that before it acceded to the Union it was entitled to the sea-bed by virtue of its status as a sovereign power, that that right had not been surrendered to the Union and therefore, continued to belong to it; the Court by a majority decided
'that California is not the owner of the three-mile marginal belt along its coast, and that Federal Government rather than the State has paramount rights in and power over that belt, an incident to which is full dominion over the resources of the soil under that water area, including oil.'
We fail to see how -- '(1946) 91 L. Ed. 1889 (X)' advances the case of the petitioners any further than Article 297 of the Constitution which enacts precisely the law as laid down therein.
It merely decided that the sea-bed within territorial waters belonged to the Union. But as already mentioned, title to the sea-bed is one thing and the title to territorial waters or even right to fish in such waters is quite a different thing. '(1940) 313 U S 69 (O)' and -- '(1890) 139 U S 240 (S)' had established that a State had the right to regulate fishing in territorial waters. In -- '(1946) 332 U S 19 (X)', both these authorities were distinguished, the decision in -- '(1890) 139 U S 240 (S)' on the ground that it 'involved only the power of Massachusetts to regulate fishing' and -- '(1940) 313 U S 69 (O)1 on the ground that 'that case was concerned with the State's power to regulate and conserve within its territorial waters, not with its exercise of the right to use and deplete resources which might be of natural and international importance' & that it was not decided 'whether the Federal Government owned or had paramount rights in the soil under the Gulf waters'. That decision, therefore, is no authority on the right of States to enact laws in respect of fishing within territorial waters.
The matter is placed beyond doubt by the decision in -- 'Toomer v. Witsell', (1947) 334 U S 385 (Y). There, the question was about the validity of a Statute of South Carolina imposing a tax on fish caught within territorial waters and requiring a licence in respect of fishing boats. The' contention was that the State had no jurisdiction over territorial waters and that the law was accordingly beyond its competence and that was sought to be supported by the decision in -- '(1946) 332 U S 19 (X)'.
It was held that -- '(1946) 332 U S 19 (X)' was not an authority for the position that the State had no competence to enact laws with reference to fishing in territorial waters; but that such laws would not, in case of conflict, prevail as against the rights of the Union. We are unable to see anything in these decisions which helps the petitioners and moreover, it is difficult to see how decisions as to 'the respective legislative jurisdiction of the Congress and of the States under the Constitution of America can be of much assistance in deciding the question whether under the Constitution of India the State Legislature has competence over a particular subject-matter or the Union Legislature. That must be determined on its own provisions and not much help can be derived from decisions on other Constitutions. For the reasons already given, we must hold that Act 26 of 1948 is 'intra vires' of the powers of the Madras Legislature. The first contention accordingly fails.
20. 2. The second contention of the petitioner is that the impugned Act is a legislation on inter-state trade and that is a subject within the exclusive competence of the Union being comprised in Entry 42 in the Union List and that, therefore, the Madras Act is void. In support of this contention it is argued that the chanks are largely used for inter-State trade being much in demand in Bengal and Assam and that, therefore, the effect of the Act is to effect inter-State trade. There is no need to deal with this contention at any length. Act 26 of 1948 was passed when the Government of India Act was in force and there was nothing in that Act corresponding to Entry 42 in the Constitution. Moreover, the notice dated 13-3-1951 against which the petitioners complain is not, as already stated, law as defined in Articles 245 and 246 and no question of any legislative competence with reference to Entry 42 arises, nor is the impugned Act a legislation on inter-State commerce in any sense. And further, it is an extravagant contention to put forward that a law as to fishing for which specific provision is made in Entry 21 of the State List is a law relating to inter-State commerce. This contention also is overruled.
21. 3. Lastly it is contended that even if the Madras Act 26 of 1948 is valid the termination of the lease by notice dated 13-3-1951 is bad, as it does not give three months' notice as required by Section 20 of the Act. Section 20 of the Act runs as follows:
'Sec. 20(1): in cases not governed by Sections 18 and 19, where, before the notified date, a landholder has created any right in any land (whether by way of lease or otherwise) including rights in any forest, mines or minerals, quarries, fisheries or ferries, the transaction shall be deemed to be valid; and all rights and obligations arising thereunder, on or after the notified date, shall be enforceable by or against the Government;
Provided that the transaction was not void or illegal under any law in force at the time;
Provided further that any such right created on or after the 1st day of July 1945, shall not be enforceable against the Government, unless it was created for a period not exceeding one year;
Provided also that where such right was created for a period exceeding one year, unless it relates to the private land of the landholder within the meaning of Section 3, clause (10), Estates Land Act, the Government may, if, in their opinion, it is in the public interest to do so, by notice given to the person concerned, terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof.'
The scheme of Section 20 is that it enacts that rights created by way of lease or otherwise by the estate-holder prior to the Notification under the Act should be valid and this is subject to three provisos. In this petition we are not concerned with the first proviso. The second proviso enacts that rights created after 1-7-1945 shall not be enforceable against the Government, unless it was for a period not exceeding one year. The lease in favour of the petitioners was created on 1-7-1946 and was for a period of ten years; and it therefore falls directly within the purview of this proviso. The notice dated 13-3-1951 recites that it was under this proviso that the State terminated the lease.
If the matter stood there, the petitioners concede that the notice should not be attacked as contravening the section. But their contention is that the matter is governed by the third proviso which enacts that where 'such right' was created for a period exceeding one year the Government might terminate it, if it is satisfied that it is in the interest of the public to do so and that must be on giving three months' notice.
The argument of the petitioners is that the words 'such rights' in the third proviso have reference to the rights created after 1-7-1945 mentioned in the previous proviso and on that construction the lease in favour of the petitioners could be terminated only in accordance with that proviso by giving three months' notice. But this is to read the third proviso not to the section, but to the second proviso and there is no warrant in law for such a construction. The words 'such rights' refer in the second proviso only to the right dealt with in the body of the section and those words occurring in the third proviso should also bear the same interpretation. That the third proviso does not govern the second proviso is also clear if the scope of the two provisos is examined.
Under the second proviso, leases for a period exceeding one year and created after 1-7-1945 are. not enforceable against the Government. That is to say, the Government can elect to disaffirm them and they become, on such disaffirmance, void. If the third proviso also applies to such leases as the petitioners contend, then the lease can be terminated only if the Government is satisfied that it is in the public interest that it should be terminated and that further in such cases the lessee will also be entitled to compensation under Section 20(2). In other words, while under the second proviso the Government can terminate the lease at its option and unconditionally, under proviso (3) that can be done only if it is in public interest and, in that event, on payment of compensation and this repugnancy can be avoided only by construing them as referring to different subjects.
Then again there is in proviso (3) an exception with reference to rights created over private lands; there is nothing corresponding to it in the second proviso and that also shows that the scope of the two provisos is different. The true effect of the section can be stated in three propositions; (i) Eights validly created prior to 1-7-1945 will be valid; (ii) such rights, however, may be determined under the third proviso if it is in the public interest to do so and in such cases compensation will be payable under Section 20(2) and (iii) Rights created after 1-7-1945 if they are for a period exceeding one year are liable to be avoided under the second proviso.
In this view, we are of opinion that the notice dated 13-3-1951 falls under the second proviso and is valid,
22. It was stated by the petitioners that the Government have accepted rent for the current fasli ending with 30-6-1953 and that it would be inconvenient if the possession is disturbed before that date. That, however, is not a matter for decision fay this Court. The Government will, we have no doubt, do what is reasonable under the circumstances.
23. in the result, the petition is dismissed, with costs of the first respondent. Advocate's fee Rs. 250.