Megha Palai and Others vs Emperor

Das, J.—The six petitioners have been found guilty u/s 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.

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.

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.

The learned Advocate-General appearing for the Crown has, however, put an interpretation on the proviso to Section 3 of the Act which would make that proviso applicable only to a portion of a navigable river. In order to appreciate the point raised by the learned Advocate-General, it is necessary to quote the proviso in full. The proviso reads as follows:

Provided that nothing herein contained shall apply to acts done by any person in the exercise of a bona fide claim of right or shall prevent any person from angling with a rod and line or with a line only in any portion of a navigable river.

The proviso as quoted consists of two part. The first part relates to acts done by any person in the exercise of a bona fide claim of right. The second part deals with the act of angling with a rod and line or with a line only in any portion of a navigable river. The learned Advocate-General has suggested that the expression "in any portion of a navigable river" which occurs in the second part of the proviso should be read as controlling the second as well as the first part of the proviso. In other words, his contention is that when the first part talks of acts done by any person in the exercise of a bona fide claim of right, it really refers to acts so done in any portion of a navigable river. In my view, this interpretation of the proviso is not correct. If acts done in the exercise of a bona fide claim of right were restricted to acts so done in any portion of a navigable river, then it would be unnecessary to impose a further restriction as to angling with a rod and line or with a line only in any portion of a navigable river. As I read the proviso, the first part is really independent of the first part. The 2nd part refers to all acts done by any person in the exercise of a bona fide claim of right. Such acts may be in private waters other than a navigable river or they may be in any portion of a navigable river in which there may be private rights. The 1st part is not necessarily confined to a navigable river or any portion thereof. It is also worthy of note that there is a comma after the end of the 1st part and before the 2nd part begins. If the interpretation which I am placing on the proviso to Section 8 of the Act is correct, then it is clear that the petitioners come within the protection afforded by the 1st part of the proviso. I have already referred to the documentary evidence in the case which shows that the villagers had been claiming the right of fishing in the waters of Brundaban Sagar from a fairly long time, and it cannot be said that the claim which they were putting forward on the present occasion was a mere colourable pretence.

The learned Advocate General has also contended that the Raja of Parikud had the right of fishing in the waters of Chilka lake and on the basis of the decision of their Lordships of the Judicial Committee in Srinath Roy v. Dinabandhu Sen AIR 1914 P.C. 48 the said Raja had the right to follow the fish if and when they went into the waters of Brundaban Sagar. The question which we are determining in the present case is not the existence or non-existence of the right of the Raja of Parikud to fish in the waters of Brundaban Sagar. The Raja of Parikud may also have the right to fish in the said waters. The question which we are determining in the present case is whether the villagers did the acts complained of in exercise of a bona fide claim of right. If they did so, they cannot be found guilty of the offence u/s 3, Bengal Private Fisheries Protection Act, 1889.

For the reasons given above, I am of the view that the:petitioners are protected by the 1st part of the proviso to Section 3 of the said act. Their conviction is, therefore, bad in law. The result therefore, is that the rule succeeds, and is made absolute. The conviction and sentences passed against the petitioners are set aside. The fines, if paid, by them, should be refunded to them.