Judgment.- These petitions relate to the Chank fishery in the territorial waters along the Sivaganga coast in Ramanathapuram district. These waters extend from Sundarapandianpatnam to Karungadu. The Director of Fisheries who is the first respondent called for tenders for the lease of chank fishery for a period of three years from 1st June, 1962, and by GO. Ms. No. 2359, Food and Agriculture dated 11th July, 1962 ; the State Government directed the grant of lease to the second respondent, his bid of Rs. 64,646 as the annual rent being the highest. His tender was accordingly accepted by the first respondent by letter dated 12th July, 1962. Under the terms of the tender, the successful tenderer will be at liberty to collect chanks caught in nets and by means of diving as well within the limits specified. In the process of such collection of shells, no chanks of less than 21 inches in diameter should be fished and taken to the shore. Any chank under the limit of 2¼ inches in diameter, if brought inadvertently to the shore, all such undersized shells should be returned at once alive to the chank-beds at sea. All undersized shells in possession of the lessee are liable for forfeiture. Should there by any change in the size of full sized and undersized chanks classification during the course of the lease, it shall be binding on the contractor. The lessee has no right over the Valampuri shell fished and it should be promptly handed over to the Assistant Director of Fisheries, Sivaganga. The fishing operation of the successful tenderer shall be subject to the supervision by the departmental staff without let or hindrance and the tenderer should afford all facilities to the departmental staff for the supervision of fishing operations, inspection of the places of storage of chanks and to check the accounts at all times with a view to ascertain the number of chanks actually fished and accounted for and to enforce the conditions of the lease. The successful tenderer shall also be subject to any stipulation regarding the wages to be paid to the divers that the State Government may deem fit to impose if necessary and shall also prepare accounts regarding the chanks fished, and amount paid to the divers in such forms as may be prescribed and send them to the Director of Fisheries and Assistant Director of Fisheries, Sivaganga, every month. Failure to comply with the conditions of the lease will entail forfeiture of earnest money, security deposit, cancellation of contract and re-sale of the lease at the defaulter’s risk. The successful tenderer is required to engross these conditions of agreement on stamped paper and to get it registered within fifteen days from the date of intimation of acceptance of tender. The second respondent got up such a deed of agreement ready by 25th July, 1962, but before its execution these petitions were filed on 26th July, 1962 and on the same day, the petitioners obtained an ad interim injunction restraining the first respondent from leasing the fishery rights. After the respondents had entered appearance, as it was represented that the fishing season for the year would be over by the end of September and in view of the undertaking given by the second respondent to pay the petitioners such damages as the Court might fix at the time of the final hearing of the Writ Petition in the event of their claims being upheld, the ad interim injunction was vacated on 31st July, 1962. The petitions under Article 226 of the Constitution are for the issue of a writ in the nature of mandamus or any other appropriate writ or order directing the first respondent to forbear from taking further steps in respect of leasing out of fishery rights in Sivaganga waters pursuant to the tender notice dated 17th March, 1962. ‘The petitioners say that they are the residents of Karungadu village, are fishermen by occupation and have no other occupation in life except fishing for chanks in the coast of Sivaganga and in the chank fishery extending from Sundarapandianpatnam to Karungadu. ‘The petitioners say that they are the residents of Karungadu village, are fishermen by occupation and have no other occupation in life except fishing for chanks in the coast of Sivaganga and in the chank fishery extending from Sundarapandianpatnam to Karungadu. They further state that while they have been pursuing their normal avocation in life by fishing chanks in the Sivaganga waters, the second respondent informed them about ten days earlier that they should not thereafter fish for chanks in Sivaganga waters making it known that he had got an exclusive leasehold fishery right for the entire Sivaganga waters from the first respondent and that if they, in spite of the prohibition, were to fish in Sivaganga waters, criminal proceedings would be instituted against them. It is claimed for the petitioners that all fisheries in India and the matters relating to fisheries are governed by the provisions of the Indian Fisheries Act, 1897, that since, neither under the provisions of the Act nor the Rules framed thereunder, the State Government has been vested with a power to lease out the fishery rights in Sivaganga waters, the first respondent acted without jurisdiction in calling upon and accepting the tender for leasing the chank fishery rights. The petitioners maintain that no Rules have been framed and notified under section 6 of the Act vesting the State Government with a power to lease such rights, that since under Article 297 of the Constitution, all lands, minerals and other things of value underlying the ocean within the territorial waters of India vest in the Union and to be held for the purpose of the Union, the first respondent has no authority or jurisdiction over the Sivaganga waters which is now one of the fisheries in the Indian Union and that any leasingout of rights to fish in the Sivaganga waters and consequent prohibition on fishing by the petitioners and other fishermen would amount to the imposition of an unreasonable restriction on the exercise of their fundamental rights under Article 19(1) (g) of the Constitution. They add that the vesting of a monopoly of fishing rights in one person and consequential prohibition of all others, in any event, infringes the fundamental rights of the petitioners and other fishermen. They add that the vesting of a monopoly of fishing rights in one person and consequential prohibition of all others, in any event, infringes the fundamental rights of the petitioners and other fishermen. On the other hand, the respondents deny the petitioners’ claim to any right to fish chanks in the Sivaganga waters and any fundamental right under Article 19 (1) (g) of the Constitution, and submit that, in view of this and as the petitioners cannot feel aggrieved by the lease, the petitions should be dismissed without further enquiry. In any case, say the respondents, the chank fisheries, as part of the assets of the Sivaganga Zamindari, became, on notification of the estate on September, 1949. under the provisions of Madras Act XXVI of 1948, exclusively vested in the State Government as its absolute property, that, as such property of the State, it is competent to deal with it in any manner it liked, just as it can deal with any other property vested in the State, that any lease granted by the State will operate according to its tenor notwithstanding any other law to the contrary by reason of the Government Grants Act, 1895 and that the lease in this case will not be subject to the provisions of the Fisheries Act, 1897. The respondents further submit that Article 297 of the Constitution has no application to this case because firstly of historical reasons, namely, the fishery rights were vested as private property under the Zamindari of Sivaganga and the State of Madras has become the owner under Act XXVI of 1948, and secondly the chank fishery is not affected by that Article. The respondents also stated that the Government at no time brought the chank fisheries under the Fisheries Act and that the Fisheries Act itself is one which gives the Government power to prohibit fishing except under a licence and is not an enactment which regulates the right of the Government to deal with wates and fisheries vested in the Government and that it is not incumbent upon it to make Rules under the Fisheries Act before it can lease out chank fishery right in the Sivaganga waters. The substantial point for decision in these petitions will, therefore, be whether the petitioners have any right as fishermen and members of the public to fish chanks in the territorial waters of Sivaganga or whether alternatively the State of Madras has an exclusive proprietary right to the Sivaganga chank fishery. The other points for consideration are whether the Indian Fisheries Act, 1897, as amended in Madras, with the Rules framed thereunder apply to the chank fishery and the lease granted to the second respondent and what is the effect of Article 297 of the Constitution in respect of the chank fishery. Before dealing with these matters in their order, certain general observations may be made. The Palk Bay and the Gulf of Mannar have been famous from the time immemorial for their pearl and chank fisheries. Both the Bay and the Gulf are partly bounded on the west by the districts of Ramanathapuram and Thiru-nelveli. The territorial waters of Sivaganga are in the Palk Bay which is of a length of about 130 miles and is practically land-locked on the west, north and south. The precise geographical situations and features of the Bay are described in A.M.S.S.V.M. &Co. v. The State of Madras1, and need no repetition. About the chank and pearl fisheries in the Gulfs, general remarks are to be found in that case as well as in Annakumaru Pillai v. Muthupayal2, and better set out in the words of Venkatarama Ayyar, J., himself who spoke for the Division Bench in the later case: "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 oy3ters. On the bottom of these Gulfs are sand-beds of a special kind called ‘Pachi 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 sometimes 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 of the coast of Ceylon. The chank beds are mostly at a depth, seldom exceeding 50 feet, often less and sometimes 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 of the coast of Ceylon. The chanks, apart from their worth, as sacred sankhas have considerable commercial value as they are largely vised for ornaments in Bengal and Assam and Tibet ; and pearl fisheries and chank fisheries have accordingly been from the earliest times important and lucrative trades in this area." It has also been noted that the Sivaganga waters extend from Sundarapandianpatnam to Karungadu in Ramanathapuram district. The Sivaganga Zamin itself originally formed part of the Ramnad Zamindari. The Fifth Report on East India Affairs edited by Firminger, Volume III, stated at page 397: " The Commission are aware, that the country called Sivaganga, was originally a part of the Ramnad Raj ; that Curta Tavar, the Rajah of Ramnad, having divided the whole of his possessions into fifths, gave to Shasavurna Tavar two-fifths, reserving three-fifths for himself. " The considerations and the legal position, which apply to the Ramnad chank fishery, are, therefore, also applicable to the Sivaganga chank fishery. On the main question the petitioners claim that under the custom and common law of this country, they have a common right to fish in the Sivaganga waters. To clear the ground, these petitions are not concerned with the claim to fishery in the waters other than the Sivaganga chank fishery. As to the common right of fishing in the territorial waters in England, the law is thus stated in 17 Halsbury’s Laws of England, 3rd edition, paragraph 512: " At common law the public has a right to fish in the tidal reaches of all rivers and estuaries and in the sea and arms of the sea within the limits of the territorial waters of the kingdom (I) except where the Crown or some subject has acquired a proprietary exclusive of the public (m) right or where Parliament has restricted the common law rights of the public (0). Before Magna Carta the Crown could exclude the right of the public in any particular place by granting a several fishery to a subject and frequently did so ; the Crown also had power by means of the writ de defensione ripariae to bar fishing and fowling in any river, whether fresh or salt till the King had taken his pleasure there. Since that date however, these powers have ceased to exist and the public right can now be excluded or modified only by act of the Legislature." Sri M. K. Nambiar, learned Counsel for one of the petitioners, submits that the law is the same in this country and that the petitioners, both as fishermen and as members of the public, have a common right to fish in the territorial waters of Sivaganga all fish including chanks. Learned Counsel points out that in fact section 3 of the Indian Fisheries Act, 1897, defines ‘fish ‘to include ‘shell-fish ‘. In Regina v. Kastya Rama1while on the question of jurisdiction of the trying Magistrate over offenders in respect of offences committed on the high seas but within three miles from the coast of British India, there was an elaborate consideration as to the ownership by the Crown of the soil under the sea within three miles from the coasts of territorial waters and common liberty of fishing in the sea, it was said: "These authorities support both the ownership by the Crown of the soil under the sea, and the proposition that the subjects of the Crown ‘have also by common right a liberty of fishing in the sea, and in its creeks or arms, as a public common of piscary. ‘‘Yet in some cases the King may enjoy a property exclusive of their common of piscary. He also may grant it to a subject ; and consequently a subject may be entitled to it by prescription ‘. The Sovereign’s rights are as great under the Hindu and Muhammadan systems as under the English; but, without a minute examination of these, it is sufficient to say that by the acquisition of India as a dependency, the Crown of Great Britain necessarily became empowered to exercise its prerogatives and enjoy its jura regalia in this country and on its coasts, subject always to the legislative control of Parliament. These are involved in the very idea of English sovereignty. These are involved in the very idea of English sovereignty. I am not aware that in any case they have been so used as to exclude any subject in this country from fishing in any part of the sea. " The rights of the Crown and of the public in the waters and the subjacent soil of the sea were again the subject-matter of discussion in Baban Mayscha v. Nagu Shravucha and others.2 The parties to the suit in that case were all fishermen owning stakes and nets fixed off the coast of Salsette, at a distance of two and three miles from the shore. Previously to 1862, the plaintiffs or the predecessors sued the defendants or their predecessors to eject the defendants from a fishing ground claimed by the plaintiffs and to recover from them damages for trespass. The suit was dismissed and the decision was affirmed in appeal on the ground, inter alia, that the existence of private property in any portion of the open sea ought not to be recognised without direct evidence of the appropriation. In 1873 the plaintiffs brought the second suit to recover damages by reason of the defendants having maliciously and wrongfully erected fishing stakes at a distance of only 120 feet from those of the plaintiffs, whereby they wrongfully disturbed the plaintiffs in the enjoyment of their right to fish and unjustifiably prevented fish from getting into the nets of the plaintiffs and to obtain a perpetual injunction to restrain the defendants from so erecting their fishing stakes. Apart from the question of res judicata the Court had to decide whether the defendants had caused any injury to the plaintiffs so as to expose them to any liability in damages. In connection with that question, the Court enquired into the right of the Sovereign to the seas and the right of the public to fish in the sea and its arms and made certain observations some of which are: “British authorities have laid it down that the British seas, to their geographical extent, whatso-ever it may be, both as regards the land or soil beneath them, and the water, are vested in the sovereign. It has been said that the sea is the King’s proper inheritance........This includes not only the open sea, but all creeks, arms of the sea, havens, ports and tide rivers so far as the reach of the tide around the coast of the United Kingdom. Lord Chief Justice Hale, in his treatise De Jure Maris divides the King’s right into two branches, Viz., (1) ‘High right of jurisdiction which he ordinarily exerciseth by his admiral’ and (2) ‘His right of propriety or ownership ‘and deals with the latter thus:- ”The King’s right of propriety or ownership in the sea and soil thereof is evidenced principally in these things that follow. 1st - The right of fishing in this sea and the creeks and arms thereof is originally lodged in the Crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is Lord, or as the right of fishing belongs to him that is the owner of a private or inland river’ ................ ‘But though the King is the owner of this Create Waste, and, as a consequent of his propriety hath the primary right of fishing in the sea and the creeks and arms thereof; yet the common people of England have regularly a liberty of fishing in the sea or creeks or arms thereof; as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places or creeks or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of that common liberty ‘.................... It should here be observed that although Lord Chief Justice Hale used the expression ‘may grant’, he must be understood as meaning that the King might, previously to Magna Carta have granted several fishery in a part or branch of the sea, or in tidal navigable rivers. It should here be observed that although Lord Chief Justice Hale used the expression ‘may grant’, he must be understood as meaning that the King might, previously to Magna Carta have granted several fishery in a part or branch of the sea, or in tidal navigable rivers. Since Magna Carta he cannot in England or Ireland by grant thus abridge the public right..............We gather from the elaborate judgments in Regina v. Kastya Rama1that the learned Judges who gave them, regarded the sea and its subjacent soil within the ordinary territoriallimit atleast around British India as vested in the Sovereign out held that the use of it for the purposes of navigation and fishing belonged communis juris to her subjects, at least so far as it had not been otherwise appropriated by the Sovereign ; and West J. in speaking of the prerogatives of the Crown in India in this respect, said: ‘I am not aware that’ in any case they have been so used as to exclude any subject in this country from fishing in any part of the sea. No grant of a fishery in the present case has been set up either as directly proved or as to be interred from prescriptive enjoyment. The complainants and the applicants alike must rest on their common right of fishing in the sea; and a permission in favour of one or other of the parties by the villagers of Yerangal, as given without title, could confer none upon other’. The complainants and the applicants alike must rest on their common right of fishing in the sea; and a permission in favour of one or other of the parties by the villagers of Yerangal, as given without title, could confer none upon other’. Whether or not the sea and its subjacent soil be vested in the Sovereign as herproperty, would not seem to be a vital question, it there has not been by the Sovereign, as appears to be the fact, in the present case, any appropriation or attempted appropriation of the sea or its soil or the right of fishing in former to any particular individuals, for where there is no such appropriation, even if the sea and its soil be vested in the Sovereign, the right of fishing in the territorial waters of British India would be common to all her subjects in that country ; and if the sea and its soil be not so vested, the right of fishing in those waters would still, as well according to the Roman Law, as the law of nations, be common to the inhabitants of British India..............the right of the Crown to the sea is not, in general, for any beneficial interest to the Crown itself, but for securing to the public the privileges of navigation and fishing....... Placing reliance on Baban Maycha v. Nagu Shravucha2, and more especially the passages I have extracted therefrom, Sri Nambiar argues that the vesting of the soil underneath the territorial waters as well as the fishing right therein in the Sovereign was only as a trustee as it were and for the benefit of the public and in its interet, so that in England after Magna Carta, the King could not grant in derogation of or abridge the subjects’ right, to common fishing, and that in India such beneficial right vested in the public and could only be taken away by an Act of Legislature. As already mentioned, the Court here is not concerned with the petitioner’s right, if any, to fish in the territorial waters of Sivaganga other than chanks The very passages relied on by Sri Nambiar in the Bombay cases as well as the excerpt above made from Halsbury’s Laws of England show that, both in England and India, before the Constitution, a right to fish belonged communis juris to the subjects only in so far as it had not otherwise been appropriated by the Sovereign. These authorities make it clear that the Crown or some subject could acquire a property or ownership exclusive of the public right and in such a case, the exclusive right should prevail over the public. So far as the chank fisheries along the sea coast of Southern India are concerned, there is ample authority both historical and judicial, to the effect that the Native Sovereigns throughout the ages, Pandiyas, Nayaks and Nawabs of Arcot and later the East India Company had regarded them as a fruitful source of revenue and held the fisheries of pearls and chanks as their exclusive property. They had either farmed out the right to fish the chanks and oysters in consideration of periodical payments on lease, or other arrangement or directly worked the chank and pearl fisheries. Two of the cases Annakumaru Pillai v. Muthupayal1, and A.M.S.S.V.N. &38; Co. v. The State of Madras2, which related to chank fishery itself along the Ramnad coast, referred to considerable historical authority and facts and regulations, to hold that chank fishery along the Ramnad coast was the exclusive property of the Rajah of Ramnad. The question directly arose for decision in the earlier case where the lessee of the Rajah of Ramnad of chank fishery charged the accused there with theft of chanks from the chank-beds of Ramnad. As the offence of theft involved a dishonest taking of movable property out of the possession of another, it had to be decided whether the chanks were capable of being regarded in law as the property of the lessee of the chank-bed and were in his possession before their alleged taking by the accused. These questions were answered in the affirmative and in favour of the lessee. These questions were answered in the affirmative and in favour of the lessee. In the first instance the case in the form of a Criminal Revision Case came before the then learned Officiating Chief Justice Subramania Ayyar and Russell, J. Since they differed on both the questions as to whether the chanks were the properties of the lessee and were in his possession before they were taken by the accused, the case was finally placed before and decided by a Full Bench consisting of Benson, Boddam and Bashyam Ayyangar, JJ. The learned Officiating Chief Justice, after referring to the fact that chank shells have long been used in this country for various purposes for making bracelets or ornaments worn largely by the women of northern parts of India or as articles of worship in Hindu temples, the shells being considered to possess purity and that valampuri chanks or shells with the whorl on the right were specially prized and fetched high prices observed: " And chanks as well as pearl oysters while still in the beds have always been taken to be the exclusive property of the Sovereign, by whom, consequently, they have been conserved ; and the fishery operations connected therewith have always been carried on under State control and have formed a source of revenue to the Exchequer. The Setupatis of Ramnad appear to have enjoyed both the pearl and the chank fisheries on the Ramnad coast while they were feudatory chiefs, but when they ceased to be such the right to pearl fisheries on the coast was apparently taken away, the right to the chank fisheries alone being continued to them. It has been viewed by some that chank fishery operations tend to injure pearl oysters and this view has led to the discontinuance of chank fisheries on the Ceylon coast. Such a notion, however, has been strongly controverted and has not been acted upon with reference to the fisheries on our coast (Mr. Thomas’s Report, page 15, section 91). Our chank fisheries are worth to Government from four to five times as much as our pearl fisheries and may, it is said easily be raised to half the present value of the Ceylon pearl fisheries (Mr. Thomas’s Report, page 28, section 91). Thomas’s Report, page 15, section 91). Our chank fisheries are worth to Government from four to five times as much as our pearl fisheries and may, it is said easily be raised to half the present value of the Ceylon pearl fisheries (Mr. Thomas’s Report, page 28, section 91). These latter brought into the State in a certain year towards the close of the 18th century as much as £140,000 though, under subsequent management, the revenue has never exceeded £87,000 in any one year (Encyclopaedia Britannics Vol. V, page 364). According to Dr. Balfour the rents received annually in respect of chank fisheries by the Government of Madras was about £1,000 those received by the Setupatis of Ramnad being £500 (Vol. 1, page 656). According to the latest information available the average revenue during the 25 years from 1876-77 to 1902-03 (not reckoning 1884-85 in which for some reason not apparent there was no fishery) derived by the Madras Government from the chank fisheries under the control of the Superintendent of Fisheries at Tuticorin amounted to Rs. 12,000 (in round numbers), the maximum derived in one year being that of 1881-82 viz. Rs. 28,000 (G.O. No. 1025, dated 6th October, 1903). " " Such being the position and circumstances of the Gulf and the surrounding country having, from very early times, been inhabited by comparatively civilized races, the Gulf, moreover being as it were stocked with the already-mentioned rich sources of wealth and commerce, the rulers of these coasts who were shrewd to make revenue out of the sea water by making the manufacture, of salt a State monopoly, were of course not slow in making revenue out of those sources as well. The fisheries in question were thus established and have been handed down from sovereign to sovereign until, about the end of the 18th or to the beginning of the 19th century they became vested in the British. All this is clearly told by authentic historians and travellers and for the present purpose it is not necessary to make more than a few references. ‘Friar Jordanus, a quaint old missionary bishop’, says the author of the Article of Pearl in Balfour’s ‘Cyclopaedia ‘, ‘who was in India in 1330, says that 8,000 boats were engaged in this fishery and that of Ceylon and that the quantity of pearls was astounding and almost incredible. ‘Friar Jordanus, a quaint old missionary bishop’, says the author of the Article of Pearl in Balfour’s ‘Cyclopaedia ‘, ‘who was in India in 1330, says that 8,000 boats were engaged in this fishery and that of Ceylon and that the quantity of pearls was astounding and almost incredible. The headquarters of the fishery was then, and indeed from the days of Ptolemy to the 17th century continued to be, at Chayl or Coil literally, the temple, on the sandy promontory of Ramnad, which sends off a reef of rocks towards Ceylon known as Adam’s bridge. And Ludovico de Varthema mentions having seen the pearls fished for in the sea near the town of Chayl in about A.D. 1500 ; and Babbosa, who travelled about the same time, says that the people at Chayl are jewellers who trade in pearls. This place is, as Dr. Vincent has clearly shown, the Koru of Ptolemy, the Kolkhi of the author of Periplus, the Coil or Chayl of the travellers of the middle ages, the Ramanakoil (temple of Rama) of the natives, the same as the sacred promontory of Ramnad and the isle of Rameswaram the headquarters of the Indian Pearl fishery from time immemorial. ‘Though in this passage no express allusion is made to the fisheries being King’s monopoly, that undeniable and well-known fact is mentioned elsewhere. From example Sir James Emerson Tennent on his work on Ceylon observes: ‘Monopolies are to the present day a prominent feature of the Ceylon revenue. The fishery of pearls and chanks has been, from time immemorial, in the hands of the sovereign’ (5th Ed., Vol. II, p. 169). That this was also the case with regard to the fisheries on the opposite coast (that of Tinnevelly and Madura), while the country was still in the hands of Hindu Rulers and down to a period not long anterior to the accession of the Nawab of the Carnatic to power, will be seen from the following extracts which I make from Nelson’s ‘Manual of the Madura Country’ — ‘Another and productive source of revenue was the great pearl fishery which was carried on annually from Cape Comorin to the island of Pamban. A rough idea of its value may be formed from a statement in Jesuit letter of the year 1700 which describes the fishery, to the effect that the Dutch used to grant licences to fish for pearls to all applicants at a uniform rate of about 60 Ecus for each vessel employed in the fishery, and that sometimes as many as 600 to 700 vessels were so employed. The net sum realised must, therefore have been about 36,000 Ecus. And it was realised from the fishery along the Tinnevelly coast only: the Ramnad coast being then fished by the Sethupathi, to whom it belonged ‘(page 154, Part III, Nelson’s ‘Madura Manual’). ‘They durst not attempt to coerce either the Sethupathi or the King of Madura and they took nothing by an embassy which they sent to the former, together with some valuable presents, for the purposes of inducing him to make over to them all his right and title to the profits of the pearl fishery on his coasts. They had obtained from the King of Madura the monopoly of the fishery of the Tinnevelly coast and drew a considerable revenue from licences to fish which thy granted to all applicants ‘(page 227 ibid). And the conch-shell fishery must also have produced a considerable revenue if, as seems, probable, the King enjoyed the monopoly of it’ (p. 154, ibid). ‘The conch shell fishery was also their (belonging to the Dutch) within the same limits as the pearl fishery and yielded a considerable profit" (p. 227, ibid).- It is scarcely necessary to add that it is matter of quite recent history that the fisheries on the said coast of the mainland passed into the hands of the East India Company on the cession to it by Nawab of the Carnatic of the revenues thereof while the Cevlon fisheries vested in the British Crown on the conquest of Ceylon from the Dutch. Now, considering that the various European maritime powers, who from about 16th century Were contending for supremacy in the Indian seas, raised no question as to the right of the sovereigns lor the time being of the Carnatic and Ceylon to their respective fisheries, there can be little doubt that such right was regarded by one and all of them as unassailable. Nor is high authority in terms referring to and recognising it wanting. Nor is high authority in terms referring to and recognising it wanting. Vattil, himself a strong adherent of the doctrine that the open sea is not susceptible of exclusive dominion, while dealing with the question of special appropriation of part of the sea, writes thus in a well-known passage: ‘The various uses of the sea near its coast render it very susceptible of property. People there fish and draw from thence shells, pearls, amber, etc. Now in all these respects its use is not inexhaustible , so that the nation to whom the coasts belong may appropriate to itself an advantage which i’ is considered as having taken possession of and make a profit of it in the same manner as it may posses the domain of the land it inhabits. Who can doubt that the pearl fishery of Bahrem and Ceylon may not lawfully be enjoyed as property ? And though a fishery for food appears more inexhaustible if a nation has a fishery on its coast that is particularly advantageous and of which it may become master, shall it not be permitted to appropriate this natural advantage to itself as a dependence on the country it possesses ? ‘(Book 1, Chapter XXIII, section 227, page 115, Translation of 1759.) With so emphatic a pronouncement by such a publicist as to the lawfulness of the exclusive possession of the fisheries in question unbrokenly enjoyed from ancient times and with instances of exclusive occupation which have taken place almost under our own eyes with reference to pearl fisheries in Shark’s Bay, etc. in Western Australia and which include pearl banks beyond the marine league limit, one may with confidence lay down that, 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. It therefore, follows that the petitioner is not precluded is law from making out a good title to chanks in the localities specified by him, by the mere fact that they lie beyond the distance of a marine league from low water mark, if he can show that the immemorial right under which he claims extends to such localities. It therefore, follows that the petitioner is not precluded is law from making out a good title to chanks in the localities specified by him, by the mere fact that they lie beyond the distance of a marine league from low water mark, if he can show that the immemorial right under which he claims extends to such localities. " I think I need make no apology for this long excerpt from the judgment of the learned Officiating Chief Justice which is very much to the point in question that I have to decide. Russell, J., took a different view and was prepared to take the view that the Rajah of Ramnad was not the owner of the bed of the sea below the low water mark and that the chanks were ferae natwae. The Full Bench, however, agreed with the conclusions of the learned Officiating Chief Justice and observed at page 574: " Both (green chanks and white chanks) are collected and are articles of very considerable utility and commercial value. The evidence shows that for many hundreds of years they, like the pearl oysters which are generally found in adjacent beds, have been the monopoly of the Rulers of the country both in India and Ceylon, and that licences to gather them have been granted by the Sovereign In addition to the facts stated by the Officiating Chief Justice in his judgment we may say that, when it, was determined to make a permanent settlement of the revenue of the Ramnad Zamindari in 1802 we find the ‘chank royalty ‘named as one of the eight heads of revenue on which the permanent assessment was fixed (Nelson’s Manual, Part IV, page 153), and it appears that in 1808 this chank royalty was hypothecated to Government as security for arrears of revenue. In 1874, the chank royalty ‘in the seaports mentioned in the margin ‘(which included Mudiampatnam now in question) was attached for arrears of revenue, and so lately as 1889 and 1900 Government itself leased the chank fisheries from the zamindar............ In 1874, the chank royalty ‘in the seaports mentioned in the margin ‘(which included Mudiampatnam now in question) was attached for arrears of revenue, and so lately as 1889 and 1900 Government itself leased the chank fisheries from the zamindar............ The exclusive property in these chanks has in fact been held by Government from time immemorial and has been leased out for the benefit of the public revenue, and this is in accordance with the common law of the country which recognises the power of Government to make settlements or grants for purposes of revenue of all unsettled and unappropriated lands whether covered by water or not covered by water and, therefore, of the produce or portions of the produce of such lands. Hari Das Kal v. Mahomed Jaki1, per Garth, C.J., on behalf of the Full Bench, and Viresa v. Tatayya2. " The ultimate conclusion of the Full Bench was thus stated: " In our view, then, the chanks which the accused in this case are alleged to have stolen were capable of being the subject of theft and 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 Crowe from time immemorial. It is not denied that Crown has included the revenue derivable from the chanks in the permanent settlement of the zamindari under Regulation XXV of 1802 and that the Ramnad Zamindar has leased them to the complainant. If the taking of the chanks was dishonest it would be theft. " Annakumaru Pillai v. Muthupayal3therefore, held beyond doubt that chanks in the territorial waters of Ramanathapuram formed part of the assets of the Rajah of Ramnad and belonged exclusively to him as his own property. What is more important to notice is that the accused in that case was regarded as having no right to fish chanks along the Ramanathapuram coast and that if he took the chanks dishonestly, he would be liable to conviction for theft. What is more important to notice is that the accused in that case was regarded as having no right to fish chanks along the Ramanathapuram coast and that if he took the chanks dishonestly, he would be liable to conviction for theft. Apart from the indisputable historical evidence that from time immemorial, Native Rulers exclusively appropriated from and held the chank fishery right in the territorial waters of Ramanathapuram and the incontrovertible fact that the Rajah of Ramanathapuram had exclusive possession of the chank fishery, that it was included as part of the assets of the Ramanathapuram Zamindar in the permanent settlement under Regulation XXV of 1802 and that he had leased out his right from time to time and derived revenue for himself, it seems equally incontrovertible that the Provincial Government of Madras itself was taking, from time to time, from the Raja of Ramnad periodical leases of the right to fish chanks in the Ramnad coast for over a long time. In the counter-affidavit of the first respondent it is stated, and it is not denied by the petitioners that from the available records it is seen that at least from 1914 the Government had taken the chank fishery on lease from the Zamindar of Sivaganga, the latest one of such leases being the one authorised by the Government in G.O.No. 1734, Development, dated 29th April, 1946, for a period of five years and the proceedings of the Dewan of the Estate of Sivaganga, dated 16th May, 1946. The first respondent also maintains in the counter-affidavit that whenever the Government was the lessee of the chank fishery, it did not allow anyone to dive and collect the chanks for himself and that whenever the fishermen went out for fishing for fish with nets and if there were any chanks sticking to those nets, such fishermen would be compelled to hand over those chanks to clerk of the department who was posted in the area. The facts too have not been specifically denied by the petitioners. When the last lease in favour of the Provincial Government was subsisting the estate of Sivaganga was notified on 7th September, 1949 under the provisions of Madras Act XXVI of 1948 and as a result, the Sivaganga estate including chank fishery vested in the Government absolutely on and from that date. When the last lease in favour of the Provincial Government was subsisting the estate of Sivaganga was notified on 7th September, 1949 under the provisions of Madras Act XXVI of 1948 and as a result, the Sivaganga estate including chank fishery vested in the Government absolutely on and from that date. Subsequently the control of the Sivaganga chank fishery would appear to stand transferred to the Fisheries Department pursuant to the directions by the Government in G.O. Ms. No. 1660, Development, dated 12th April, 1951. It is stated for the first respondent in his counter-affidavit that from 1951 to 1956 the chank fishery of Sivaganga were not leased out by the Government but were worked out by the department and during this period the fishermen who collected chanks from the nets were required to hand over the collections to the department and towards the end of 1955 and the beginning of 1956 departmental fishing with divers was undertaken and chanks were collected. From 1st June, 1956 the chank fishery rights in the Sivaganga waters were leased out by the State Government for two periods of three years each, namely, from 1st June, 1956 to 31st May, 1959 and 1st June, 1959 to 31st May, 1962. After the expiry of the last lease, tenders were again called for which resulted in the lease in favour of the second respondent. After the Sivaganga estate was taken over and vested in the State Government under Madras Act XXVI of 1948, by notice the State Government acting under section 20 of the Act as it stood then, terminated the unexpired portion of the lease which led to A.M.S.S.V.M. &38; Co. v. The State of Madras1. The lessee in that case unsuccessfully contended that the termination by the Government by notice, dated 3rd March, 1951 of the lease was invalid as Madras Act XXVI of l948 was beyond the competence of the Madras Legislature in so far as it related to the fishery. ‘Before dealing with that question, a Division Bench of this Court consisting of the learned Chief Justice and Venkatarama Ayyar, J., referred to the geographical features of Palk Bay and Gulf of Mannar, the commercial and other value of pearl fisheries and chank fisheries in the bed of the gulfs and historical evidence relating to the ancient Native Rulers owning chank fisheries as their exclusive property and deriving revenue therefrom. The learned Judges-observed: " The Soverign 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 Erithrasi Mans (about 80 A.D.) and Ptolemy (about 140 A.D.) that a place called Korkai was the head quarters of the pearl fishery of the Pandyan Kings. Kalidass mentions that the Pandyan King offered as his tribute ‘superior pearls obtained from the sea at its confluence with Tambraparni’ . In the Middle Ages Kayal became the centre of the pearl fishery and according to Friar Jordanus, no less than 8,000 boats were employed in the Fisheries of Tinnevelly and Ceylon’................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 1872 the East India Company succeeded to their rights. The Madras Permanent Settlement Regulation XXV 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. 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. I have already mentioned that Sivaganga had originally formed part of the Zamindari of Ramanathapuram and, therefore, the observations of the Division. Bench relating to the title of the Rajah of Ramanathapuram to the chank fisheries equally apply to the chank fisheries in the territorial waters of Sivaganga. Consequent upon the abolition of the estate of Sivaganga and its vesting in the Province of Madras, and now the State of Madras, it must be held, therefore, that the State Government is exclusively entitled to the chank fishery in the territorial waters of Sivaganga. It follows that the petitioners either as fishermen or members of the public have no common right to fish chanks in those waters and appropriate the same for themselves. If the petitioners have no such right, on this finding alone, as rightly urged by the learned Advocate-General, the petitions should be dismissed as totally lacking any basis for the complaints made therein. In fact in circumstances somewhat similar to those present here, Rajagopala Ayyangar, J. (as the learned Judge then was) dismissed in limine W.P. Nos. 1269 and 1270 of 1956. Two objections were raised on behalf of the petitioners in those petitions: (1) that the Government had not enforced the terms of the conditions and had granted the lease to the second respondent-firm there, which was then composed of more partners than what it was constituted of at the time of the tender ; and (2) that no Rules had been framed under the Fisheries Act and so the petitioners had also a right to fish for chanks in the area leased. As to the first, the learned Judge observed that it was for the Government and not for the petitioners and as to the second if the petitioners were right, they could fish and take the consequences but that did not render the lease to the second respondent invalid or give a right to them to challenge it. The appeals (W.A. Nos. 1 and 2 of 1957) against the order of Rajagopala Ayyangar, J., were also summarily dismissed. The appeals (W.A. Nos. 1 and 2 of 1957) against the order of Rajagopala Ayyangar, J., were also summarily dismissed. While agreeing with the learned Judge, the appellate Bench was also of the opinion that if the appellants were prevented from exercising their alleged right, they certainly had the ordinary remedy in a civil Court. But since I have now heard elaborate arguments on the points raised in these Writ Petitions, I have preferred to consider them and render my decision thereon. Sri Nambiar, whom I have not heard to controvert or deny the historical facts adverted to in the decision above mentioned and to which I have made reference contends, however, that Annakumaru Pillai v. Muthupayal1must be regarded as having been rendered per incuriam because it was in total disregard of the provisions of the Indian Fisheries Act. This argument involves a consideration of the relevancy and applicability of the provisions of that Act to the facts and circumstances of these petitions. There is no doubt that in principle a decision rendered by even the highes judicial authority will have no binding force as a precedent if it was rendered in total ignorance or disregard of a relevant statute or statutory rule. Observed Lord Greene, Master of the Rolls, on behalf of the English Court of Appeal in Toung v. Bristol Aeroplane Co., Ltd.2 “ It (where the earlier decision was given per incuriam) depended upon the true meaning (which in the later decision was regarded as clear beyond argument) of a rule of the Supreme Court to which the Court was apparently not referred and which it obviously had not in mind.......... Where the Court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law. But where the Court is satisfied that an earlier decision was given in ignorance of the terms of the statute or a rule having the force of a statute, the position is very different. It cannot, in our opinion be right to say that in such a case the Court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. It cannot, in our opinion be right to say that in such a case the Court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam.” I have therefore, to see whether Sri Nambiar is right in his contention that the learned Judge decided Annakumaru Pillai v. Muthupayal1in ignorance or in disregard of the provisions of the Fisheries Act and the Rules made thereunder. The argument of course assumes that the chank fisheries in the territorial waters of Sivaganga are governed by that Act and the Rules. The Indian Fisheries Act enacted in 1897 contains seven sections, the first of them which related to title and extent; the second to read the Act as supplemental to other enactments relating to fisheries ; the third contains definitions ; the fourth and the fifth prohibit destruction of fish by explosives in inland waters and on coasts and by poisoning waters. Section 6 provides for protection of fish in selected waters by rules to be made by the State Government. The Act of course extends to the whole of India except the territories which immediately before 1st November, 1956 were comprised within Part B States. The word ‘fish ‘is defined to include ‘shell fish ‘and the phrase ‘private water ‘to mean water which is the exclusive property of any person or in which any person has for the time being an exclusive right of fishery whether as owner, lessee or in any other capacity. There is an Explanation to the definition which says that water does not cease to be ‘private water ‘within the meaning of the definition by reason only that other persons may have by custom a right of fishery therein. ‘Water’ for the purpose of section 4 relating to destruction of fish by explosives in inland waters and on coasts includes the sea within a distance of one marine league off the sea coast. Sub-section (1) of section 6 states that the State Government may makes Rules for the purposes specified in the section and may by notification in the Official Gazettee apply all or any of such Rules to such waters not being private waters, as the State Government may specify in the said notification. Sub-section (1) of section 6 states that the State Government may makes Rules for the purposes specified in the section and may by notification in the Official Gazettee apply all or any of such Rules to such waters not being private waters, as the State Government may specify in the said notification. As regards private waters, sub-section (2) of section 6 provides that the State Government may also by notification apply such Rules or any of them to such waters with the consent in writing of any of the owners thereof and of all persons having for the time being any exclusive right of fishery therein. The matters for such regulations or prohibition by Rules are stated by sub-section (3) of section 6 to be erection and use of fixed engines, construction of weirs and the dimension and kind of nets to be used and the modes of using them. Under sub-section (4) Rules made by the State Government may also prohibit all fishing in any specified water for a period not exceeding two years. Sub-sections (3) and (4) of section 6 have been amended by Madras Act II of 1929, the former by insertion of some words and the latter by substitution of a new sub-section which reads: "(4) Such rules may also prohibit all fishing in any specified water except under a lease or licence granted by Government and in accordance with such conditions as may be specified in such lease or licence: Provided that no rule shall be made under this sub-section to prohibit sea fishery other than pearl fishery or chank fishery unless, after previous publication under sub-section (6) of this section, it has been laid in draft before both the Houses of the State Legislature and has been approved by a resolution of both those Houses either with or without modification or addition ; but upon such approval being given the rule may be issued in the form in which it has been so approved. " Contravention of the prohibition under sections 4 to 6 is an offence and section 7 provides for a limited procedure for arrest without warrant of the offenders under the Act. By a notification of the State Government in December 1913, Rules were made in exercise of the powers conferred by sub-sections (1) and (3) to (5) of section 6. " Contravention of the prohibition under sections 4 to 6 is an offence and section 7 provides for a limited procedure for arrest without warrant of the offenders under the Act. By a notification of the State Government in December 1913, Rules were made in exercise of the powers conferred by sub-sections (1) and (3) to (5) of section 6. These Rules define ‘chank ‘as meaning chank or conch turbinella pyrum or turbinella rapa ; and ‘chank bed ‘as the bed of the sea specified in Schedule I appended to the Rules. Schedule I to the Rules specifically provides the area of pearl banks. Rule 2 prohibits fishing or diving for pearl oysters or chanks in the area specified in the Schedules I and II "or collecting pearl oysters or chanks from any pearl bank or chank bed or using any vessel for any such purpose except under a licence in the form prescribed in Schedule III to the Rules granted by the Local Government. It is further provided in Rule 2 that every holder of the licence shall strictly abide by the terms and conditions contained therein. The methods of fishing and diving and all other connected operations for the collection of pearl oysters and chanks are required by Rule 3 to conform strictly to the Rules and conditions under which the licence is issued. Breach of Rule 2 is made by Rule 4 punishable with fine and a continuing breach with a further fine subject to certain limits. Schedule II to the Rules defines the area of the chank bed as the bottom of the sea between the low water line and 12 fathoms contour off the Presidency of Madras excluding the coast of the Ramnad and the Sviaganga Zamindaris in the. Ramnad district. The diver’s licence the form of which is prescribed in Schedule III, states that the licence is to be issued in the name of the licensee who is permitted to dive from a specified boat for collecting chanks and that the licence is also issued subject to certain conditions. Among such conditions are, the licensee shall not dive for chanks anywhere except in the place specified by the Fisheries officers and. shall cease diving immediately the signal to cease diving is given ; he shall not also fish chanks measuring below certain specification. Among such conditions are, the licensee shall not dive for chanks anywhere except in the place specified by the Fisheries officers and. shall cease diving immediately the signal to cease diving is given ; he shall not also fish chanks measuring below certain specification. These conditions also require that the licensee shall land the whole catch of chanks in the place on the beach specified by the Assistant Director of Pearl and Chank Fisheries, carry the day’s catch to the Government godowns and deliver the same to Fisheries officers appointed to receive them. For the services of the licensee, he shall receive payment as provided in the conditions of the licence for all full-sized chanks without defects which are in conformity with the specifications. Those shells below the specifications shall also be delivered to the Government free of charge. The licence shall be produced on demand by any officer of the Fisheries or other department specifically authorised to do it. A boat-licence also is issued under the Rules in the form prescribed which shows that the person named in the licence will be permitted to use the boat specified therein for collecting chanks and it shall carry persons not exceeding a prescribed limit. This licence is issued subject to certain conditions one of which is that the licensee shall produce the licence on demand by any officer of the Fisheries or other department specifically authorised to do so. These Rules were amended by the Provincial Government by notification issued in February, 1959, the most important of which is that the words “ Presidency of Madras excluding the coast of the Ramanathapuram and the Sivaganga Zamindaris in the Ramanathapuram district” in Schedule II of the original Rules were substituted by the words “ State of Madras”. The result of the amendment was that the exclusion from the scope of the Rules of the coast of the Ramanathapuram district was dropped and the entire coast of the State of Madras was brought within the ambit of Schedule II of the Rules. The result of the amendment was that the exclusion from the scope of the Rules of the coast of the Ramanathapuram district was dropped and the entire coast of the State of Madras was brought within the ambit of Schedule II of the Rules. It may be seen that the provisions of the Indian Fisheries Act as well as the Rules framed thereunder which I have noticed above, are regulatory in character the object being to protect fish, which includes shell-fish from destruction by use of dynamite and poison in all waters within the then British Jurisdiction in India the prohibition of course being restricted in respect of dynamite to the territorial waters, and to empower the Local Government to make Rules and to apply them to any selected streams or other waters belonging to the State or to any other streams or waters with the consent of the persons owning them or interested therein. The scope of the Rule extends to prohibition or regulation of the use of fixed engines for the capture of fish and the construction of weirs, use of nets with a mesh below a minimum size, capture or sale of all or any kinds of fish during any close season and total closure of any waters for a period not exceeding two years. The regulatory provisions are made effective in application by making contravention an offence punishable with fine. Under the Madras Amendment of the Act in 1929, such Rules may also prohibit all fishing in any specified water except under a lease or licence granted by Government and in accordance with such conditions specified in the lease or licence. As a result of this amendment, the limit of two years for prohibition of all fishing was lifted. It may be noted that what is provided by section 6, as amended by the Madras Legislature, is power to make Rules on matters and in the manner specified. The Rules as framed and amended in Madras however, as already noticed, provide that chanks in the areas specified in Schedule II should not be collected by fishing or diving or by use of any vessel for such purpose except under a licence. The Rules did not say that these operations could be carried on, under a lease as well, granted by the Local or State Government or by any officer empowered in that behalf. The Rules did not say that these operations could be carried on, under a lease as well, granted by the Local or State Government or by any officer empowered in that behalf. It is on this Sri Nambiar places strong reliance and argues that as there is no provision in the Rules for the Government to lease the right to collect chanks in the Sivaganga coast excepting by that means the general prohibition and the lease granted to the second respondent is invalid. But it is apparent from the provisions of the Act as well as the Rules framed thereunder that their object expressly or by implication was neither to confer a right upon any one which he did not otherwise previously own or possess, nor take away a right which a person had already owned or possessed. They did not and do not affect in any way the right to property as such in chank fisheries vested either in the Crown at the relevant time or the Union or the State Governments or private bodies or individuals. There is nothing in them to suggest that exclusive or proprietary rights in such fisheries should not be exercised or asserted by the properties quoad owners. In fact, the Act itself, as I stated, defines ‘private water ‘as exclusive property of any person or in which any person has for the time being an exclusive right of fishery whether as owner, lessee or in any other capacity, and the Rules framed under section 6 can be made applicable to such waters only with the consent in writing of the owners of such waters or of persons having for the time being any exclusive right of fishery therein. The aim of the Act and the Rules is no more than to conserve the wealth of fish including, of course, chanks, by prohibiting indiscriminate destruction in specific ways and to afford protection to fish in waters including selected waters. The regulatory provisions, both in the Act and the Rules, has never been as far as I can see, intended to and do not confer a right upon the public including the petitioners as fishermen to fish chanks, in the Sivaganga waters which belonged exclusively to the Sivaganga Zamindari before its abolition. The regulatory provisions, both in the Act and the Rules, has never been as far as I can see, intended to and do not confer a right upon the public including the petitioners as fishermen to fish chanks, in the Sivaganga waters which belonged exclusively to the Sivaganga Zamindari before its abolition. In fact this position was also recognised by the Rules framed toy the Provincial Government in 1931 in which the coasts of Sivaganga and Ramanathapuram were excluded from their purview. I cannot, therefore, accept the contention of Sri Nambiar that Annakumaru Pillai v. Muthupayal1was decided per incuriam overlooking or disregarding the provisions of the Indian Fisheries Act. As a matter of fact, when the decision was rendered, even the Rules under section 6 had not been framed by the Provincial Government. The conclusion on this discussion of the provisions of the Indian Fisheries Act and the Rules framed thereunder, as amended in Madras is to my mind irresistible that they entirely left untouched the exclusive rights of fishery, their incidence and exercise subject to limited regulation with the written consent of those entitled to such rights and conferred no rights upon the general public in derogation of such exclusive rights. The petitioners cannot, therefore, claim that either the Indian Fisheries Act or the Rules framed thereunder gave them or recognised in them as members of the public or fishermen, any right to dive or otherwise fish and catch chanks in the Sivaganga waters and appropriate the same for themselves. In fact, under the Rules the petitioners do not even have a right to dive without a licence and the prohibition against fishing in the waters of Sivaganga except under a licence or lease is not certainly declaratory or an affirmance in any way of any right in the petitioners. The status of persons who dive under a licence in the Ramanathapuram coast is no more than that of workmen employed by the State and the relationship between them and the Government, when it worked its rights under a lease in respect of exclusive fishery in chanks in Ramanathapuram coast was that of an employee and the employer. That was the decision in Muthumeenatchiya v. Assistant Director of Fisheries2. That was the decision in Muthumeenatchiya v. Assistant Director of Fisheries2. Basheer Ahmed Sayeed, J., held in that case that the work of the divers was such that they had to perform the duties in accordance with the conditions which had been imposed and which they had to observe strictly in the course of performing their job and that having regard to the control which the Government exercised over such divers in regard to the manner in which they had to discharge their duties, the relationship of employer and employee or master and servant existed between the Government and the licensed divers. This decision was affirmed in appeal by a Division Bench of this Court in Letters Patent Appeals Nos. 100 and 101 of 1959. It was true that this case arose under the provisions of the Workmen’s Compensation Act and the question that had to be decided was whether the divers were workmen within the meaning of that Act. But the point to be noted is that the claimants there could not have succeeded if the divers had done their work in exercise of their right, if any, to fish chanks in Ramanathapuram coast and appropriate the same for themselves. If the petitioners have no right to fish chanks in the waters of Sivaganga either under the provisions of the Indian Fisheries Act or the Rules framed thereunder or independently of them, as I hold they have none, I fail to see how they are entitled to question the validity of the lease granted by the Government to the second respondent, in respect of the right to fish chanks in the Sivaganga waters as the exclusive property of the Government. It was on that ground, among others, as already mentioned, W.P. Nos. 1269 and 1270 of 1956 and W.A. Nos. 1 and 2 of 1957 filed by different petitioners questioning the validity of a lease granted by the State of Madras to the second respondent there were dismissed in limine. On behalf of the petitioners, my attention has been invited to The State of Assam v. Keshab Prasad Singh and another1and K. N. Guruswamy v. The State of Mysore2, but in view of the conclusions I have reached, I fail to see how they are of any assistance to them. On behalf of the petitioners, my attention has been invited to The State of Assam v. Keshab Prasad Singh and another1and K. N. Guruswamy v. The State of Mysore2, but in view of the conclusions I have reached, I fail to see how they are of any assistance to them. This leads me to the last argument of Sri Nambiar based on Article 297 of the Constitution, though in the view I have taken above, it may not in any event help the petitioners. Whether the chank fishery in the territorial waters of Sivaganga after 26th January, 1950 is the property of the Union Government or continues to belong to State Government by virtue of the abolition of the Sivaganga estate and its assets including the chank fishery being absolutely vested in the State of Madras prior to the Constitution, is entirely a matter between those Governments and does not concern the petitioners so far as their assumed common right to fish chanks in those waters is concerned. Prior to the enactment of Government of India Act, 1935, the set-up of the Government of India being unitary, no question could arise of any property being vested in the Government of India or the Provincial Government. The entire property stood vested then in the Crown represented by the Secretary of State for India. But, for the first time, under the Constitution Act of 1935 by section 172 a scheme of division of properties came about vesting all the property in a Province in the Provincial Government subject to exceptions, and the rest, together with the properties covered by such exceptions, in the Central Government. Part XII, Chapter III of the Constitution of India deals with property, contracts, rights, liabilities, obligations and suits. Article 294 provides for succession by the relative State or the Union Government as the case may be, to the respective property, contracts, liabilities and obligations which had severally stood vested in them prior to 26th January, 1950 subject of course to adjustment consequent upon the division and constitution of the Dominion of Pakistan or of the Provinces of West Bengal, East Bengal, West Punjab and East Punjab. Articles 295 and 296 deal respectively with succession to property, assets, rights, liabilities and obligations in respect of Part B States and with property accruing by escheat or lapse or as bona vacantia. Articles 295 and 296 deal respectively with succession to property, assets, rights, liabilities and obligations in respect of Part B States and with property accruing by escheat or lapse or as bona vacantia. Article 297 reads: “ 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.” The next Article as substituted by the Constitution (Seventh Amendment) Act, 1956 states: “The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purposes provided that- (a) the said executive power of the Union shall, in so far as such trade or business or such purpose is not one with respect to which Parliament may make laws, be subject in each State to legislation by the State ; and (b) the said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws, be subject to legislation by Parliament.” The rest of the Article in the Chapter it is unnecessary to notice for present purposes. Entry 57 of the List I in Seventh Schedule relates to fishing and fisheries beyond territorial waters and Entry 21 in List II of the same Schedule, to fisheries. So fishing within the territorial waters is subject to State Legislative power. The argument of Sri Nambiar is that as under Article 297 lands, minerals and other things of value underlying the ocean within the territorial waters of India vested in the Union, it must be held that, even on the assumption that chank fishery in the territorial waters of Sivaganga was the absolute property before 26th January, 1950 of the then Provincial Government, subsequent to that date the fishery became vested in the Union and since then it is held by the Union for the purposes of the Union and that the State Government can no longer claim the chank fishery as absolutely belonging to it. His further proposition is that the fact that Article 298 read with the relative legislative entries confers power upon the State Legislature to legislate on fisheries including in territorial waters, does not imply proprietary right of the State in such fisheries. On these premises it is stated for the petitioners that the State Government had no right to lease out the Sivaganga chank fishery either as the proprietor or under the Rules framed under section 6 of the Indian Fisheries Act. It may be conceded that the legislative power is certainly distinct and different from proprietary right and conferment of such power does not by itself carry with it or affect the ownership of the subject-matter in regard to which such power is exercised. In Attorney-General for the Dominion of Canada v. Attorney-General for the Provinces of Ontario, Quebec and Nova Scotia1, one of the questions before the Judicial Committee of the Privy Council was whether section 91 of British North America Act, 1867 conveyed to the Dominion of Canada any proprietary right in relation to fishery. The answer was in the negative. It was held that section 91 did not convey to the Dominion any proprietary rights in fisheries which had previously wested either in the Provinces or in individuals, although the legislative jurisdiction conferred by section 91 upon the Dominion Legislature enabled it to affect those rights to an unlimited extent short of transferring them to others. Observed Lord Herschell speaking for the Board: “ 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. The Dominion of Canada was called into existence by the British North America Act, 1867. Whatever proprietary rights were at the time of the passing of that Act possessed by the Provinces remain vested in them except such as are by any of its express enactments transferred to the Dominion of Canada ....................Their Lordships have already noticed the distinction which must be borne in mind between rights of property and legislative jurisdiction. Whatever proprietary rights were at the time of the passing of that Act possessed by the Provinces remain vested in them except such as are by any of its express enactments transferred to the Dominion of Canada ....................Their Lordships have already noticed the distinction which must be borne in mind between rights of property and legislative jurisdiction. It was the latter only which was conferred under the heading, ‘Sea-Coast and Inland Fisheries’ in section 91. Whatever proprietary rights in; relation to fisheries were previously vested in private individuals or in the Provinces respectively remained untouched by that enactment. Whatever grants might previously have been lawfully made by the Provinces in virtue of their proprietary rights could lawfully be made after that enactment came into force. At the same time, it must be remembered that the power to legislate in relation to fisheries does necessarily to certain extent enable the Legislature so empowered to affect proprietary rights..........If, however, the Legislature purports to confer upon others proprietary rights where it possesses none itself, that in their Lordships’ opinion is not an exercise of the legislative jurisdiction conferred by section 91. If the contrary were held, it would follow that the Dominion might practically transfer to itself property which had, by the British North America Act, been left to the Provinces and not vested in it.” But I do not see how the distinction between legislative jurisdiction and proprietary rights as applied to Article 298 advances the petitioners’ claim that the chank fishery in Sivaganga waters has vested in the Union Government under Article 297. I have already referred to Article 294 the effect of which clearly is that the properties, which had belonged to the Provincial Governments, would after the commencement of the Constitution stand vested in the respective succeeding State Government subject to certain exceptions and adjustments which are not relevant here. Article 294 is not made subject to the other provisions of the Constitution. The question will, therefore, arise whether, notwithstanding the terms of Article 294 not made subject to any other provision in the Constitution, the intention of Article 297 is to transfer and vest in the Union Government, any proprietary rights in the subjects mentioned therein which had previously vested in the Provincial Governments, and, after the commencement of the Constitution, stood, by Article 294, transferred to the succeeding State Government. It, however, seems to me that it is unnecessary for the purpose of this case to deal with and decide this question, as in any case I think chank fisheries are not within the ambit of Article 297. What it vests in the Union is what underlies the ocean within the territorial waters of India and not the territorial waters themselves. For the purpose of the vesting under this Article, the dividing line appears to be between the bed of the ocean and the waters above it. What does not underlie the bed of the ocean is in my opinion clearly, outside the purview of Article 297. Chanks cannot, I think, in any sense, be regarded as underlying the bed of the sea but are fish gathered or taken not from underneath the bed but from the sea bed. Precisely this view, if I may say so with respect, of Article 297, was expressed by Rajamannar, C.J., and Venkatarama Ayyar, J., in A.S.S.S.V.N. &38; Co. v. The State of Madras1which I have already noticed in this judgment in another connection. One of the arguments the learned Judges had to deal with was that under Article 297, the territorial waters had come to be vested in the Union and that the notice issued by the State Government after the commencement of the Constitution terminating the lease there was beyond the competence of the Madras State. Rejecting the argument they held: “ 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 13th March, 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..........Under this provision (Article 297) 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. 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..............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 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..............As regards the territorial waters, therefore, the position under the Constitution remains what it was under the Government of India Act.” No doubt having said all that, the learned Judges were of the opinion that even if they came to a different conclusion on the point, they would still hold that Entry 21 in the State List was 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 Scotia2and on this principle it was sufficient to say that the power to legislate on fisheries in the territorial waters was granted to the State Government. Nevertheless I think that what the Bench observed was clearly an expression of its opinion as to the scope of ambit of Article 297. I hold, therefore, that the chank fishery in the territorial waters of Sivaganga is not by virtue of Article 297 vested in the Union Government but continues to be the exclusive property of the State Government, that as its proprietor it is competent for it to grant the lease of the right to fish chanks in those waters in favour of the second respondent and that the petitioners have no common or other right to fish chanks in the waters or to question the lease. The petitions fail and they are dismissed with costs. Counsel’s fee Rs. 100 in each of the petitions to be equally divided between the respondents. V.S. ---------------------- Petitions dismissed.