JUDGMENT 1. This is an appeal against a decree of Babu Annada Churn Sen, Land Acquisition Judge of Balasore, dated the 23rd February 1904. The decree was passed on a reference made by the Land Acquisition Deputy Collector of Balasore under sec. 18 of Act I of 1894 for the purpose Of determining the amount of compensation to be paid to the claimants of certain fishery rights on the foreshore of the Proof Range at Chandipur acquired by Government for a public purpose by notification No. 1150 L.R. of the 3rd March 1903, published at page 292, Part I of the Calcutta Gazette of the 4th March 1903. The fisheries are 11 in number. 2. The only question contested in the Court of first instance seems to have been the question of compensation. The Land Acquisition Judge allowed Rs. 1,565-5-3 for the fisheries in Taluk Majhibala, Rs. 4,463-2 for the fisheries in Taluk Joydeb, and Rs. 881-13-8 for the fisheries in Taluk Padmapur, that is, sums considerably in excess of the compensation awarded by the Deputy Collector. 3. The claimants were not satisfied and appealed to this Court, complaining that certain evidence had been excluded by the 1st Court. The Court by its decree of the 2nd January 1907, allowed this contention and remanded the case to the first Court for the admission and recording of the evidence excluded. 4. The lower Court has admitted and recorded this evidence. 5. The whole appeal is now before us. 6. It appears to us that the proceedings of the first Court, as well as those of the Collector, are from beginning to end without jurisdiction. 7. The fishery-rights taken up are described in the reference by the Collector as follows : "The fishery rights contained within the boundaries of the lands, as already acquired by Government, for the Military Department at Chandipur, thus bounded :--North :--The remaining unacquired portion of the villages Srikona and Mirzapur. South :--The remaining unacquired portion of the village Joydeb Kosba. East:-- Sea, West:--The remaining unacquired portions of the villages Srikona, Hidga, Guddu, Nidhipura and Joydeb Kesba." 8. South :--The remaining unacquired portion of the village Joydeb Kosba. East:-- Sea, West:--The remaining unacquired portions of the villages Srikona, Hidga, Guddu, Nidhipura and Joydeb Kesba." 8. Now it appears that by a previous declaration No. 777 L.R. of the 10th February 1896, published in the Calcutta Gazette of the 12th February 1896, Part I, page 187, the following lands were acquired :--"A piece of land measuring, more or less 909 mans 1 ghunt and 11 biswas of standard measurement. It is bounded on the north by the remaining portion of the village of Chandipur and Roman Catholic Mission Bungalow, south by the remaining portion of village Barkia, east by the sea, and west by the remaining portions of the respective villages of Chandipur, Srikona, Higan Ranshi, Guddu, Joydeb Kosba, Barkia and Nidhipura." Hence the lands, over which the fishery rights now acquired are exercised, were acquired by Government in 1896. The fishery rights now to be acquired are in fact exercised over the foreshore off Chandipur in the Balasore District. The eastern boundary of the lands previously acquired was "the sea." In the reference of the Deputy Collector in these proceedings, the eastern boundary of the fisheries to be acquired is described as "the sea." 9. The first matter which strikes us in connection with, and which seems to be a fatal objection to these proceedings is that the rights of fishery which have now been acquired were previously acquired by Government in 1896. The Government then took up the foreshore over which the fishery rights now to be acquired are exercised, and consequently acquired the foreshore and all rights existing In connection with it and exercised over it. The Government cannot therefore take them up again. The second objection to these proceedings is that the Government is now taking up fishery rights, that is, incorporeal rights without taking up the land over which they are exercised and which, as already pointed out, Government has already taken up, and which is its own property. Government cannot In our opinion do this under the Land Acquisition Act. Land is defined in the Act as including benefits arising out of land, etc. But land Is not defined as meaning benefits arising out of land. Government cannot In our opinion do this under the Land Acquisition Act. Land is defined in the Act as including benefits arising out of land, etc. But land Is not defined as meaning benefits arising out of land. Therefore, fishery rights are not land, and it is only land, including the rights arising out of it, but not the rights detached from the land, that can be acquired under the Act. The Government pleader calls our attention to the definition of "persons interested," in which it is said that a person shall be deemed to be interested in land, if he is interested in an easement affecting the land." This is no doubt correct, but It does not follow that because a person interested in an easement affecting the land may be entitled to share in the compensation awarded for the land that an easement comes within the definition of land, and can be acquired under the Act detached from the land affected by it. 10. The Government pleader has further explained that after Government acquired the foreshore off Chandipur, it, in 1897, leased the fishery-rights in the sea, that flows over the foreshore to certain persons for 30 years and they have transferred or sublet their rights to others. Government now repents of its having done so. It now wishes to cancel its settlement of these fishery rights, and to give it a good title to them, and to save it the trouble and danger of dealing with the settlement holders and their transferees, it has adopted the plan of taking the fishery-rights up under the Act. 11. In our opinion, though it is doubtless convenient to it to do so, Government cannot for the two reasons already assigned adopt this course. 12. The Government pleader's next argument is that the parties interested have only contested the amount of compensation awarded. This is not so, for all the claimants in their written statements, plead that "by contesting the amount of compensation they are not in any way waiving their right of questioning the Land Acquisition proceedings in the Civil Court on the ground that these fisheries cannot be legally acquired under Act I of 1894." See pp. 8, 12, 16 and 20 of the paper-book. 8, 12, 16 and 20 of the paper-book. Again, in their memorandum of appeal to this Court, their second ground of appeal is :--"That the Court below should have held that the right to fishery in respect of the space between the high-water and low-water mark, being neither land nor profits arising out of land the subject-matter is beyond the scope of the Land Acquisition Act and it cannot thus be acquired." Mr. Caspersz too for the Appellants contends that the proceedings of the Deputy Collector are without jurisdiction. He goes further; for he asserts that the proceedings of 1896 are illegal and that Government could not then legally acquire under the Act the foreshore off Chandipur. We need not enter into that question now. We are not at present concerned with the legality of the proceedings of 1896. 13. But even if the Appellant had not raise the plea, we consider we would have been entitled of our own motion to enquire into the legality of the Collector's proceedings and of the reference, see Bibi Ladli Begum v. Bibi Raje Rabia ILR 13 Bom. 650, 653 (1888). 14. The Government Pleader finally calls our attention to the case of Babujan v. Secretary of State 4 C.L.J. 256 (1906). In this case it has been said, "The matter been referred to the District Judge, at the instance of Bebijan who claimed to be the proprietor of the land, the Judge held that the Collector had no jurisdiction to deal with the case as he had done, and that he could not, therefore, entertain the reference. He, however, did not stop there, but went on to hold, that the Act did not apply to a case in which the Collector claims the land, on behalf of the Government or the Municipality. Mr. Forester was no doubt right in holding that the first proceedings and the reference thereunder were bad, because what has to be acquired in every case under the Land Acquisition Act, is the aggregate of rights in the land, and not merely some subsidiary right, such as that of a tenant. 15. These passages are, we think, in favour of the views we have expressed. They show ILR 13 Bom. 15. These passages are, we think, in favour of the views we have expressed. They show ILR 13 Bom. 650 (1888) that what is to be acquired in every case under the Act is the aggregate of rights in the laud, and not merely Borne subsidiary right, as in this case, fishery-rights: 4 C.L.J. 256 (1906) that it is the duty of Civil Court to set, aside proceedings of, and a reference, by the Collector which are bad, being contrary to the provisions of the Act. We accordingly decree this appeal. We set aside the proceedings and the reference by the Collector in this case. The Appellants are entitled to all their costs in both Court.