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TMI Blog1953 (2) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... tes 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 all 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 true that, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y-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 security 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be urged 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 Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 941, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the coast waters, especially the use of the fishery therein, is consistent only with the territorial character of the maritime belt. The argument............that, if the belt is to be considered a part of State te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 territorial jurisdiction 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 posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erritorial 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 sli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tunneling 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erived 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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