Sarjoo Prosad, C.J.
1. The common question, which arises for determination in these appeals, which have been preferred under Rule 11 of the Rules for the settlement of fisheries in Assam, is about the interpretation of Rule 13 of the said Rules. The Rules in question have been framed under Section 155 and 156 of the Assam Land and Revenue Regulation, 1886, read with Section 6 of the Indian Fisheries Act 1897.
2. One of these appeals was originally put up for hearing before my learned brother Mehrotra, but he referred the same for decision by a Division Bench. In his opinion, the points raised were of considerable importance and affected a large number of such cases. In his order of reference, he formulated two main questions which fell to be determined: (1) whether the words, 'formed by actual fishermen' in Rule 13 mean that the Society must exclusively consist of actual fishermen or it would be enough compliance with the law if the majority of the members are those, who carry on actual profession of fishermen; and (2) whether subsequent withdrawal from membership of those, who are not Fishermen by profession, will entitle the society to the settlement under Rule 13 or is it necessary that the society must consist exclusively of fishermen at the time when the settlement is made. The attention of my learned brother was drawn to the unreported decision of Deka, J. in Abdul Malik v. A.M. Deshmukhya, Revenue Appeal No. 30 (M) of 1958, D/-2-6-1958 (Assam).
There the learned Judge observed that where a registered co-operative fishery society was 'formed partly by actual fishermen and partly by non-actual fishermen,' it was not a society within the meaning of Rule 13 of the Rules, entitled to preference in matters of settlement. If this decision of Deka, J. is correct, then it must be held that the requirement of the Rule is that each and every member of the co-operative society must be a fisherman, who carries on the profession of fishing and if anyone of them happens to be a non-fisherman in the sense of having any other profession or occupation, the society would not be a society deserving of the benefit of that Rule. We have to examine, therefore, the correctness or otherwise of the decision in question. As our decision depends on the interpretation of Rule 13 itself, it is just as well to refer to the language of the Rule. The Rule is headed 'Settlement of fisheries with Co-operative Societies' and it runs as follows:
'13. (a) Registered Co-operative Fishery Societies formed by actual fishermen of the Scheduled Caste and individual actual fishermen of the Scheduled Caste, giving substantial bid in the sale, shall be given the option of taking settlement of fisheries at the highest bid in order of preference as stated above.
(b) When a fishery, bid value of which does not exceed Rs. 20,000/- (Rupees twenty thousand), is settled with anyone falling within one of the above two categories, the lessee shall get a rebate of 10 per cent as concession.
Note 1. By 'actual fisherman of the Scheduled Caste' is meant fisherman by profession and not fisherman by Caste alone.
Note 2. The 10 per cent rebate concession will be withdrawn at any time when circumstances so demand.
Note 3. 'Substantial bid' means any bid representing 60 per cent or above of the highest bid.'
What then is meant by the words 'formed by actual fishermen', etc.? The word 'actual' in the Rule has no other significance except what is defined by the Note appended to the Rule, namely, that they should be fishermen by profession and not fishermen by caste alone. Substituting the definition of the word 'actual' in the main body of the Rule, it comes to this that the society should be 'formed of fishermen of the Scheduled caste, who are in fact fishermen by profession and not by caste alone.' The words 'formed by actual fishermen,' therefore, should not be read as 'formed by fishermen exclusively'. Not much stress, therefore, can be laid upon the word 'actual' for the purpose of holding that each and every individual member of the society must be actually a fisherman.
For facility or organisation and management of the society, actual fishermen, wholly by themselves may be unable to carry on the affairs of the society and may necessarily require the assistance of a few persons, who are not actually fishermen by profession; but if in form and substance, as judged from its personnel and working the society is a society promoted, organised, and run by fishermen, there does not appear to be any cogent reason why the society so composed should be deprived of the benefit of the rule. The working and organization of a society require knowledge and experience and some amount of literacy, skill and worldly wisdom. These factors may be generally lacking in the members of the Scheduled Caste, having mainly the profession of fishing, for whose benefit and protection the Rule has been devised.
If for these reasons a society has on its registers, a few members, whose share in the profits of the society may be comparatively small and who may be there for the purpose of assisting the society in the conduct of its business but otherwise the society consists substantially of actual fishermen and by and large exists for their benefit, the society should nonetheless be held to be a society 'formed of actual fishermen' within the meaning of the Rule and entitled to its advantages. A too rigid an interpretation of the Rule limiting the membership of the society exclusively to actual fishermen would render its working almost impossible, as in many genuine cases it would be difficult for members of the fishing, to manage a society of the kind by themselves, especially where huge sums of money are involved.
It is contended that this difficulty could be overcome by employing certain office bearers of the society, who may be competent to manege its affairs; but, this contention ignores the fact that a mere employee of the society may not have the same interest in its smooth and efficient working as a share-holder in the society is likely to have; and if in the best interest of the fishermen of the Scheduled Caste a few members of the society are co-opted, who are not actually fishermen, it would not affect the genuineness of the society as one formed by actual fishermen of the scheduled caste. The real test is whether in form and in substance it is a society composed of actual fishermen or a mere name for certain designing persons, who though not actual fishermen profit thereunder.
I, therefore, regret that I find myself unable to accept the interpretation of Rule 13, as adopted by Deka, J. in the case in question. Of course, the question whether in substance the society is a society formed by actual fishermen, would be largely a question of fact. It would be for the authorities to ascertain on the evidence and circumstances of a case whether the society answers to that description.
The only thing which I would like to point out is that only because a few of the members of the society happen to be other than actual fishermen, is not decisive of the matter. It will have to be ascertained whether in its personnel, in the distribution of its profits, in its actual working, it is predominantly a society composed of fishermen of the scheduled caste or the society is a mere namelender for certain individuals, who mainly control the society and its profits and are not actually fishermen by profession. In the latter part of the Rule, the word 'substantial' occurs and I think that should also determine the main characteristic of the society in question.
3. The decision of Ram Labhaya, J., in Keshab
Prasad Singh v. Mahoram Das, Revenue Appeal No.
24 of 1954, D/-1/-6-1954 (Assam), does not appear
to be quite in point, because in that case four persons
out of a group of seven were not actual fishermen
by profession. One was employed in the Tezpur
Municipal Office, another was a carpenter and a
petty contractor, the third was a teacher in the
Lower Primary School and the fourth was a
gaonbura. In the circumstances, it was held that
they were not actual fishermen and 'in order that
they should be fishermen by profession, it is necessary that their main, if not the only source of livelihood, should be fishing.'
By a parity of reasoning the principle may be applied to the society also. In other words, it mainly the society is formed of actual fishermen, there is no reason why it should not be considered to be a society within the meaning of the Rule and entitled to preference thereunder. I had the privilege of considering the decision of Deka, J., in connection with another point bearing on the application of Rule 13, in my judgment m Mt. Shewti Tamuli v. Sri A.M. Deshmukhya, Revenue Appeal No. 41(M) of 1958, D/-/-8-1958 (Assam).
The question was whether the option contemplated by the Rule could be kept alive even after the bid had been closed by the officer conducting the sale and whether it could be given by the Deputy Commissioner or the Commissioner when approving the sale at a later stage. The learned Judge had held that the option should be invited before the sale is finalised; in other words, the option should come from the officer conducting the sale, who after recording the highest bid, may announce that the registered co-operative fishery society or the individual actual fisherman, who has offered substantial bid, may take settlement at the highest bid in order of preference; and in case no such offer was given, the settlement should be made with others, not coming within those categories.
The above view ruled out the possibility of any such option being given to the society or the individual fisherman concerned at any later stage by the Deputy Commissioner or the Commissioner. Rule 13 contains no such words of limitation, nor does Rule 5 fetter the discretion of the Commissioner to direct settlement with any suitable bidder under Rule 7. I, therefore, pointed out that the above observations were apparently in conflict with the Special Bench decision of this Court in Harinath Das v. State of Assam, AIR 1958 Assam 70, to which Deka, J., was himself a party. It was held by the majority in the above case that Rule 13 did not lay down that the option has to be exercised at the time of the auction sale or immediately thereafter.
The option could be exercised after the sale is over and the bids have been completed and until the settlement was finalised and confirmed By the Commissioner, because till then the settlement remains in a state of suspense. Therefore, at any time before the sale finalised by an order of settlement, the option under Rule 13 could be exercised by the persons entitled to preference under the Rule. The decision of the Special Bench is binding on this Court, irrespective of any individual views on the matter, and any observation to the contrary cannot be treated as good law on the point.
The decision of Deka, J., therefore, suffers from that infirmity also. On the first question, therefore, I am inclined to hold that if in the main it is a society formed of actual fishermen, who are also fishermen by profession belonging to the scheduled caste, the society should be entitled to preference. The words 'main' or 'substantial' of course do not occur in the Rule; but in order to make the Rule workable, it is permissible to assume that this was what was meant by the Rule; and such an interpretation is consistent with the accepted canons of construction of statutes or rules.
4. On the next question also, we have to adopt the principle which was laid down in the above Special. Bench case in its application to the point under investigation. In other words, even assuming that at the time of the bid, the society was not adequately composed of actual fishermen of the scheduled caste by profession, if by the time that the settlement comes to be made, any irregularity on the point has been cured, and in the main it is found to be a society of actual fishermen, then the option under Rule 13 can be made available to the society, because till the approval by the Commissioner and the execution of the lease, the settlement has not been concluded, and if, the authorities find any irregularity in the society, the society can get the irregularity cured as a condition precedent to its getting the benefit of the option under Rule 13 and obtaining the settlement in its favour.
The position, however, would be different if it is found that at the time when the bid was offered it was not really a fishery society, but a namelender for certain individuals, who were not bona tide fishermen by profession, answering to the description given under Rule 13, and who merely wanted to profit under cover of that name by obtaining settlement from the authorities. All this of course would be a question of fact to be determined by the authorities before granting the option contemplated by Rule 13. Bearing in mind these general principles, which would commonly govern these appeals, I would now proceed to deal with them individually.
5. Revenue Appeal No. 39 (M) of 1958. This appeal relates to the settlement of Burisuti Parts I and II with Bhangadia fishery of Dibrugarh Subdivision for the years 1958-59 to 1960-61. The fishery was put up for sale by public auction on 10-2-1958. The appellant, who claims to be a permanent inhabitant of Lakhimpur district and is fisherman by caste and carries on fishery business, offered a bid of Rs. 24,000/-. The highest bid of Rs. 24,300/- was offered by one Mohamed Kuddus, while the respondent No. 4, the Dibrugarh Fishery Co-operative Society Ltd. offered a bid of Rs. 21,000/- only.
After the close of the bid, the appellant offered to take settlement of the disputed fishery at the highest bid on the strength of Rule 13(a) of the Fishery Rules and on the ground that he was an actual fisherman; but the Additional Deputy Commissioner directed settlement with the Dibrugarh Fishery Co-operative Society Ltd., the respondent No. 4, at the highest bid of Rs. 24,300/- in accordance with the Rule.
The appellant urges that the Fishery Society did not deposit the security in cash on the date of auction, but merely offered a cheque which though retained by the Additional Deputy Commissioner, was not accepted in payment and the actual payment was made in cash on the following day, i.e., the 11th February, 1958. It was further stated that the said respondent, Fishery Society, failed to execute the counter-part within the period of one month from the date of the auction in accordance with Rule 5(3) of the Fishery Rules. The appellant contends that on the failure of the respondent No. 4 to deposit the security or to file the counter-part within time, there should have been a fresh auction as contemplated by Rules 5 and 6 of the Rules. The order of settlement passed by the Additional Deputy Commissioner was approved by the Commissioner of Flams Division by his order dated 16-4-1958 and thus the settlement in favour of respondent No. 4 was affirmed.
6. The main contentions of the appellant are that the respondent Society is not a society formed of actual fishermen of the scheduled caste as most of the members of the society including some of the office bearers were Government servants and carried on profession other than that of fishermen. It is also suggested that two of the members, Pramath Nath Sarma and Dina Nath Sarma do not belong to the community of fishermen, but are Brahmins by caste. In the memorandum of appeal, 22 names of the members of the society were mentioned as being persons other than actual fishermen. The
other contention was that the respondent No. 4 having failed to file the counter-part within time, there should have been a fresh auction sale.
In reply, an affidavit has been filed by Sri Dhaneswar Hazarika, Chairman of the respondent society, in which it is stated that the society was formed and registered as early as 1935 and has been the lessee of several fisheries including the disputed fishery, prior to the settlement now in question. At the time of the bid, the society consisted of 188 members of which some were carrying on professions other than those of fishermen.
These members helped in correspondence and keeping of accounts and conducting business in meetings, they having joined and helped to form the society at the request of the actual fishermen members. It is further slated that when it was held in Revenue Appeal No. 30(M) of 1958 that inasmuch as 17 members on the rolls of the society were not fishermen by profession, no preferential treatment under Rule 15 of the Rules could be available to the Dibrugarh Fishery Co-operative Society Ltd., some 33 members of the society including the said 17 members submitted applications for withdrawal of their membership and their share money.
These applications were granted by a resolution of the Managing Committee dated 5-6-1958, which was later approved by the Registrar of Co-operative Societies, and those persons ceased to be members of the Society. So far as the other two members, Sri Pramatha Nath Sarma and Deina Nath Sarma are concerned, it was stated that they were kaibartas, having inter-marriage in that community. There was-also a supplementary affidavit filed, which completely explained the position of the 22 persons in regard to whom objection was raised in the memorandum of appeal. There is also an affidavit in reply to the counter-affidavit.
7. The position which emerges from these affidavits is that on the date when the auction sale took place, there were 188 members of the society out of whom 33 were not fishermen by profession; though subsequent to the date of approval of the settlement by the Commissioner, these 33 persons have ceased to be members of the Society. Applying the test which I have already laid down earlier, it would appear that the society did not cease to be a society within the meaning of Rule 13 and was justly entitled to preferential treatment in the matter of settlement of fisheries.
The Deputy Commissioner points out that at no stage earlier, an objection was taken on the ground that in substance the respondent Society was. not a Co-operative society formed by actual fishermen and that some of its members carried on profession other than that of a fisherman. On the materials as they are, it seems to us that the order of the Commissioner approving of the settlement with the respondent Fishery Society cannot be questioned on that account. The fact that the 22 persons against whom objections were taken ceased to be members of the society after the approval of the settlement by the Commissioner did not affect the validity of the settlement in the circumstances of this case, because in our opinion, even at the time when the bids were offered, the society was duly constituted as a society of actual Fishermen.
8. The other questions raised in this appeal could be easily answered. It is true that the initial security was not deposited in cash on the date of auction; but it appears that the cheque issued by the Society was accepted by the officer conducting the sale on condition of the amount being paid in cash on the following day and when this payment was made, the officer accepted the same and returned the cheque. In effect, therefore, the initial security was deposited on the date of auction and there is no violation of the Rule on that point. As to the execution of the counter-part, I should point out that Rule 5 in terms does not apply to cases where option is given to a party under Rule 13 of the Rules.
In such cases, the Commissioner or the Deputy Commissioner, while giving the option to the person concerned, may fix reasonable time in their order for the deposit of the securities or for execution of the counter-part. This is obvious, because in principle the option may be offered even at a much later stage and therefore, the time table mentioned in Rule 5 could not be strictly followed. In my decision in Revenue Appeal No. 41(M) of 1958, D/-/-8-1958 (Assam), I held as follows:
'The period given under Rule 5 cannot evidently be strictly followed in a case where an option to take settlement of a fishery at the highest bid is given to a bidder in order of preference, as stated under Rule 13, specially where this option can be also given to a bidder by virtue of an order passed by the Commissioner at the stage of approval or disapproval of the settlement, recommended by the Deputy Commissioner or the Sub-divisional Officer. It follows that in such cases a reasonable period may have to be fixed by the Deputy Commissioner for deposit of the required security, failing which the option will be rendered infructuous and the Deputy Commissioner, with the approval of the Commissioner, may then proceed to settle with the highest bidder or any other bidder who may have offered security in due time in anticipation of the Commissioner's approval. In the circumstances, it does not appear to me that there has been any violation of the rules in accepting the security amount even after the expiry of the period mentioned in Rule 5.'
Nothing has been suggested by the learned counsel for the appellant to induce me to change my opinion on the point. The consequences of resale contemplated by Rule 6, therefore, do not arise.
8a. The appeal is accordingly without any substance and must be dismissed.
9. Revenue Appeal No. 67 (M) of 1958. This appeal, as I shall presently show, is analogous to Revenue Appeal No. 60(M) of 1958. It relates to settlement of Dehing River Fishery Part III by public auction held on 10-2-1958. The proposed settlement is for three years from 1958-59 to 1960-61. The highest bid offered at the auction was that of the respondent No. 2, Sifatulla (the appellant in Revenue Appeal No. 60 (M) of 1958), and the third highest bid was that of the appellant, Tingrai Fishery Co-operative Society Ltd. The Deputy Commissioner by his order dated 10-2-1958 directed settlement with the highest bidder at Rs. 8,500/-and put up the papers for confirmation of sale by the Commissioner.
Before the Commissioner, it appears, that representations were made against the order of settlement passed by the Deputy Commissioner, both by the appellant as well as by the respondent No. 1, which also claims to be a registered co-operative society of fishermen, known as the Naharkatiya Fishery Co-operative Society Ltd. The Commissioner returned the papers to the Deputy Commissioner, Lakhimpur, directing him to settle the fishery with the more deserving of the two societies, that is between the appellant and the respondent No. 1; and the Deputy Commissioner by his Order dated 24-5-1958 held that the settlement of the fishery should be made with the Naharkatiya Fishery Cooperative Society Ltd.
10. The order is attacked on the ground that the respondent No. 1 is only nominally a co-operative society and that its members are not actual fishermen. When the papers were returned to the Deputy Commissioner for making a settlement either with the appellant or with the respondent No. 1, whichever of the two societies was found to be more suitable under Rule 13, an enquiry was made by an Extra Assistant Commissioner at the instance of the Deputy Commissioner, who submitted a report in favour of the appellant, relying inter alia upon the report of the Deputy Co-operative Officer, Joypur, Sri Gohain, dated 16-4-1958.
The Deputy Commissioner, however, again referred the case to the Additional Deputy Commissioner for a report and the latter officer merely suggested that there was a possibility of the Tingrai Fishery Co-operative Society being amalgamated with the Naharkatiya Fishery Co-operative Society; and evidently acting entirely on this report, the Deputy Commissioner directed settlement to be made with the respondent No. 1, the Naharkatiya Fishery Co-operative Society Ltd. On behalf of the Naharkatiya Fishery Co-operative Society Ltd., an affidavit has been filed disputing the report of the Extra Assistant Commissioner and the allegations made by the appellant.
It is obvious on the record that the Deputy Commissioner did not apply his mind to the materials placed before him and simply on the suggestion of the Additional Deputy Commissioner that the two societies were likely to be amalgamated,--a possibility which none of the parties appears to accept--he passed the order in question for settlement in favour of the respondent No. 1. It is true that three of the members out of the 28 members of the appellant society are not actual fishermen by profession; but, as we have held, this factor alone is not decisive of the matter.
It would be, therefore, open to the Deputy Commissioner to consider the matter afresh in the light of the decision given by this Court and then after examining all the materials bearing on the suitability or otherwise of the rival co-operative societies, contesting the settlement, pass suitable orders. We would accordingly remand the case for a proper consideration of the matter by the Deputy Commissioner before directing any settlement either with the appellant society or with the respondent No. 1. We, therefore, refuse to go into the merits of the respective contentions urged by the parties as based on their affidavits. The order of the Deputy Commissioner passed on consideration of the matter will of course be again subject to approval by the Commissioner.
It is wrong to suggest that the Commissioner by his earlier order gave a carte blanche to the Deputy Commissioner and abdicated his power of approval, which he enjoys under Rule 7 after consideration of the recommendation of the Deputy Commissioner on merits. We would accordingly set aside the order of settlement and direct that the matter should be reheard and appropriate orders passed for settlement of the said fishery with any of the parties concerned.
11. Revenue Appeal No. 60(M) of 1958. The appeal is analogous to Appeal No. 67(M) of 1958 and relates to settlement of the same fishery for the same period. As we have considered it proper to direct a remand in the other case, we do not think at right to make any prejudicial observation on the merits of this case either. The only additional ground, which has been taken in this case and which needs to be disposed of, is that the Naharkativa Fishery Co-operative Society Ltd., with whom the settlement was ordered, having failed to furnish the additional security within the time allowed under Rule 5(2) of the Fishery Rules and the Additional Deputy Commissioner having ordered resale of the fishery by his order dated 4-6-1958, the Commissioner had no jurisdiction to direct the Deputy Commissioner to accept the security money furnished beyond the period allowed under Rule 5.
In view of what we have said earlier, this ground has no substance, because it was open to the Commissioner to accept the security money even if the period mentioned in Rule 5 had expired, in a case where option had been given under Rule 13 of the Rules. We have already directed, however, in the other appeal that the matter of settlement of the fishery in question in this case should be reconsidered as between the respondent No. 5 to this appeal, The Naharkativa Fishery Co-operative Society Ltd.. and the appellant society in the other Appeal. It is only if both these societies are found to be unsuitable that the authorities may consider whether they should direct settlement in favour of this appellant or whether they should hold a resale of the fishery in question. It would be open to the Deputy Commissioner to take into account the objections raised by the present appellant also before deciding about the settlement of the fishery.
12. With these observations, this appeal is also disposed of and the case remanded to the Deputy Commissioner for disposal accordingly. Mehrotra, J.
13. I agree with the reasons and the order proposed by my Lord the Chief Justice in all the three appeals. As the matter was referred to a Division Bench by me I would like to add my own reasons for coming to the said conclusions particularly on the main question regarding the interpretation of Rule 13 of the Fishery Rules.
14. Maharam Hazarika, the appellant in appeal No. 39 (M)/58 is a resident of Dibrugarh town and has been carrying on fishery business by taking settlement of Government fisheries for last several years. He claims to be a Kaibarta by caste and a fisherman by profession. In pursuance of a notice issued under the signature of the Additional Deputy Commissioner, Lakhimpur to the effect that Burisuti Parts I and II with Bhangadia Fishery of Dibrugarh Sub-Division would be sold by public auction for a period of three years (1958-59 to 1960-61), the appellant participated in the auction sale held on 10-2-1958 and offered a bid of Rs. 24,000/-.
The Dibrugarh Fishery Co-operative Society which is respondent No. 4 to the present appeal and Md. Kuddus were also the bidders at the auction sale. Md. Kuddus offered the highest bid of Rs. 24,300/- and the Dibrugarh Fishery Co-operative Society Ltd., respondent No. 4, gave a bid of Rs. 21,000/. The appellant alleges that after the close of the auction sale he expressed his intention to exercise his option of taking settlement of the disputed fishery at the highest bid in terms of Rule 13(a) of the Fishery Rules.
The Additional Deputy Commissioner by his order dated 10-2-1958 directed the settlement of the Fishery with respondent No. 4 in terms of Rule 13(a) of the Fishery Rules. Immediately after the acceptance of the bid, respondent No. 4, according to the appellant, did not deposit the security money in cash as required by Rule 5(2) of the Fishery Rules. The amount of security money was paid by the respondent No. 4 by a cheque which was not accepted by the Additional Deputy Commissioner by his order dated 11-2-1958.
The Additional Deputy Commissioner however by another order of the same date, accepted the amount of security money in cash tendered by respondent No. 4 on 11-2-1958. The order of settlement passed by the Additional Deputy Commissioner was sent to the Commissioner of Plains Division for approval as required under the Fishery Rules and he by his order dated 16-4-1958 approved the settlement in favour of respondent No. 4 at an annual revenue of Rs. 24,300/- for three years. The present appeal has been filed against the order of the Additional Deputy Commissioner directing settlement of the aforesaid fishery with respondent No. 4. The order has been attacked inter alia on the following grounds :
1. That the Dibrugarh Fishery Co-operative Society is not formed by actual fishermen of the scheduled caste, that is to say, fishermen by profession. The society was thus not entitled to any preferential right under Rule 13 of the Fishery Rules.
2. That the respondent No. 4 not having deposited the security money immediately after the acceptance of the bid, the Additional Deputy Commissioner had no power to accept the security money on 11-2-1958. His action was in contravention of Rules 5(2) and 5(3) of the Fishery Rules under which, in these circumstances, he should have directed resale of the fishery.
3. That the Dibrugarh Fishery Co-operative Society was holding the settlement of all the big fisheries of the District and virtually a monopoly has been created in its favour which was not warranted by the principles of the Constitution.
15. As regards the first contention the facts alleged in the petition are that most of the members of the Society including some of its office bearers are Government servants and carry on a profession other than that of fishing and thus they are not fishermen by profession. Two of its members Sri Pramath Nath Sarma and Sri. Dinanath Sarma do not belong to Kaibarta community They are Brahmins by caste. A list of 22 persons is given in paragraph 8 of the petition giving the names of those who, according to the appellant, are not fishermen by profession.
Their profession is indicated against their names in the said list. In the counter-affidavit filed on behalf of the respondent it is stated that at the time of settlement held on 10-2-1958 the Society consisted of 188 members of which some were carrying on profession other than that of fishing. They were included in the membership as they were helpful to tie Society in the matters of correspondence, keeping accounts and conducting business matters.
They were the members who helped the formation of the Society. After the decision of this Court in Revenue Appeal No. 30(M)/58, 33 members including the 17 members who were held as non-fishermen by profession in the above appeal, submitted application for withdrawal of their membership and share money.
The Managing Committee of the Society in its meeting held on 5-6-1958 took up their applications and granted them permission to withdraw their membership and further directed the refund of their share money. Subsequently approval was obtained from the Assistant Registrar of Co-operative Societies, Dibrugarh to the said resolution.
It is denied in the counter-affidavit that Sri Promode Chandru Sarma is a Brahmin. According to the respondent he is a Kaibarta and has intermarriage with them. It is denied that Pramath Nath Sarma and Dinanath Sarma were ever members of the Society. It is then denied that the appellant Maharam Hazarika is an actual fisherman by profession. This matter came up before me and I referred the appeal to a Division Bench in view of certain observations of Hon. Deka J. in Revenue Appeal No. 30 (M) of 1958.
In the above appeal the question arose whether the Dibrugarh Fishery Co-operative Society, respondent No. 4 in this appeal, was entitled to preferential right under Rule 13 of the Fishery Rules in respect of another fishery and it was held by this Court that as the Society was not formed exclusively of actual fishermen of the scheduled caste since some 17 persons out of the share-holders were fishermen by caste alone and not by profession, it was not entitled to any preference under Rule 13(a). It was observed in that case that this rule should be strictly interpreted because it provides for a permissible discrimination in favour of a class of people.
Two questions arise in regard to the first point urged by the appellant, firstly whether Rule 13 of the Fishery Rules which provides that a registered cooperative fishery society formed by actual fishermen of the scheduled caste should be given a preference, speaks of the co-operative societies consisting exclusively of fishermen by profession; or it mainly the members are fishermen by profession, the control and the management of the Society is in the hands of actual fishermen and the substantial portion of the benefit goes to the actual fishermen by caste, the society will be deemed to be a society formed by actual fishermen of the scheduled caste; and secondly whether the respondent can take advantage of the subsequent withdrawal of the 17 members who were not actual fishermen by profession and contend that the Society is formed not of actual fishermen or the position of the Society at the time when the settlement was made will have to be considered, and it is not open to this court to take into consideration the subsequent resolution of the Society by which the 17 persons were permitted to withdraw from membership.
16. Rule 13 of the Fishery Rules provides that registered co-operative fishery societies formed by actual fishermen of the scheduled caste and individual actual fishermen of the scheduled caste, giving substantial bid in the sale, shall be given the option of taking settlement of fisheries at the highest bid in order of preference as stated. By a note appended to this rule 'actual fisherman of the Scheduled Caste' has been defined to mean fishermen by profession and not fisherman by caste alone. The question whether the respondent No. 4 is a Society contemplated by Rule 13 is a question which will depend mainly on the composition and control of the society.
That respondent No. 4 is a registered cooperative fishery society cannot be disputed as it was registered in the year 1935 under the Co-operative Societies Act and the name of the Society was 'The Dibrugarh Fishery Co-operative Society Ltd.' The point still to be considered is how far it can be said to be 'formed of actual fishermen of the scheduled caste'.
The object underlying the rule is to give preference in the matter of settlement of fisheries to those who are of scheduled caste and carry on the profession of fisherman. The note appended to the Rule also emphasises the fact that the actual fisherman is one who carries on the profession of a fisherman and not one who is fisherman by caste alone. The rule has primarily provided for preference in favour of the scheduled caste and the intention being to further limit the preference, it has been confined to scheduled caste people who are by profession fishermen and not to those alone who are fishermen by caste.
The rule further lays down that the preference is to be given collectively to fishermen by profession over an individual fisherman. To our mind if it is found that the Society is largely composed of actual fishermen, the control of the Society is in the hands of the fishermen by profession and the Society mainly benefits the fishermen as a class, it will be doing no violence to the language of Rule 13 if it is held that such a Society is formed of actual fishermen. If the interpretation of the appellant is accepted that Rule 13 contemplates a Society exclusively formed of actual fishermen, it would be adding the word 'exclusively' after the word 'formed' in the rule.
In the present case it is not disputed that the Society was composed of 188 members out of whom on the admission of the appellant himself only 17 persons were those who did not carry on the profession of a fisherman. In the petition it is pointed out by the appellant that these 17 people were carrying on some other profession. It is also difficult to say that because they carry on other profession as well, they cannot be regarded as carrying on the profession of fishermen. As was held by a single Judge of this Court in Revenue Appeal No. 24 of (1954 D/- 1/-6-1954 'the requirement of the rule is that in order to earn the concession under Clause (2) the individuals should be actual fishermen by profession. In order that they should be fishermen by profession it is necessary that their main, if not the only source of livelihood, should be fishing.' If therefore the main source of these 17 members was fishing, they will be regarded as actual fishermen even though they may be carrying on another profession. It has not been clearly stated that their main source of income is profession other than that of actual fishermen, but even assuming that 17 persons out of the membership of 188 were not actual fishermen by profession in the sense that their main source of livelihood was not fishing, they to my mind, formed a very insignificant portion of the entire membership. The object of the Society as laid down in the bye-laws is as follows :
'The object of the Society is to promote the economic and educational interests of its members and with this end in view :
(a) To carry on the business of fishing among the Kaibarta.
(b) To take fisheries on lease from the Government under their patronage in respect of leasing out the fisheries to the Society.
(c) To allow the fishermen members to fish in the fisheries of the society on rent.
(d) To realize rent on the fisheries from each fisherman member of the Society at the rate to be fixed by the General Meeting of the Society, and to realize from each fisherman member of the society at the rate of one anna -/1/- per, rupee of his daily income as deposits with the Society with a view to encourage thrift and to the extent of 50 per cent.
(e) To realise rent on the fisheries from each non-member who will fish in the fisheries of the Society at the rate to be fixed by the General meeting of the Society.
(f) To train the fishermen on the improved lines of fishing.
(g) To safeguard the interest of the Society by employing foreign fishermen in the fisheries of the Society and to deal in fish purchasing fish from other places.
(h) To receive deposits from members or borrow from non-members when funds are needed for the purpose of the society.
(i) To do all other nets as are conducive or incidental to the attainment of the above objects.' In Clause 15 of the bye-laws it is also provided that the supreme authority of the Society is vested in the general meetings, the Chairman of the general meeting is to be elected from among the members, and all matters discussed shall be decided by a majority of votes unless a special majority is required by the rules or bye-laws. From this also it is clear that the control vests in the majority.
In our opinion therefore, having regard to the fact that the Society is largely composed of actual fishermen, substantial benefit goes to actual fishermen and the effective control of the Society is in the hands of actual fishermen, it cannot be said that the respondent No. 4 is not entitled to the concession under Rule 13. It is also not disputed that 33 members including the 17 withdrew from the membership of the Society in view of the decision of this court in the earlier appeal and their share money has been directed to be refunded. The Additional Deputy Commissioner had settled the fishery with respondent No. 4.
The order of settlement was approved by the Commissioner, No objection was taken at the time of the bid or even before the Commissioner when the matter went to him for his approval, to the effect that the Society was not formed of actual fishermen. In these circumstances this court will not upset the decision or the Additional Deputy Commissioner if it finds that on the date when the relief is to be granted to the appellant, the Society is formed of actual fishermen only.
It is always open to the appellate authority to take into consideration subsequent events in moulding the relief to be granted to a party to the appeal; In Lachmeshwar Prasad v. Keshwar Lal AIR 1941 FC 5 it was held by the Federal Court that 'the hearing of an appeal under the procedural law of India is in the nature of rehearing and therefore in moulding the relief to be granted in a case on appeal the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against.'
17. As regards the second point raised by the appellant on 10-2-1958 the option exercised by respondent No. 4 was accepted by the Additional Deputy Commissioner and the fishery was ordered to be settled with it. Thereafter the Society gave a cheque for the amount of the security money as required under Rule 5 of the Fishery Rules. On 11-2-1958 the Society made an application that as the cheque for Rs. 12,000/- and odd which had been given by the Society had not been accepted, the Society should be allowed to deposit the amount in cash. The Additional Deputy Commissioner passed the following order :
'Seen the petition filed. I refuse to accept cheque for payment of initial security but the purchaser had no time to withdraw the money from the Bank. The purchaser (Dibrugarh Co-operative Fishery Society) could not withdraw the amount yesterday and they gave a cheque but they have now given the amount in cash at 11 A.M. The amount is accepted as a special case under the circumstances. Return the cheque to the society.
Sd. A.M. Deshmukhya.
A. D. C. 11/2'
From this order it is clear that the cheque was kept by the office and was returned to the respondent on 11-2-1958 when the cash payment was made. The cash payment was therefore made in lieu of the cheque. The cheque was given immediately after the offer of the respondent was accepted. Rule 5 does not say that the security is to be given in cash. The cheque ordinarily will be regarded as payment. The security was therefore furnished as required by Rule 5(2).
The Additional Deputy Commissioner might have ordered next day that the cheque should be replaced by the cash money by the Society, but that does not mean that the security had not been
deposited immediately on 10-2-1958 as required by the rule. In these circumstances it cannot be said that there was any non-compliance with Rule 5(2) of the Fishery Rules so as to enjoin upon the Additional Deputy Commissioner to resell the property. In the view which I take of this case it is not necessary to go into the question as to how far Rule 5 is attracted in cases where the settlement is made after the option has been exercised by a Society under Rule 13.
It was contended by the respondent that Rule 5 is attracted only in cases where there has been a settlement with the highest bidder. The time factor is of no consequence in cases where the settlement is made with a co-operative society under Rule 13. The actual time table laid down in Rule 5 cannot in fact be carried out in cases where the option is exercised at a later stage and therefore the rule could not have been intended to apply to such cases.
It may be that the Additional Deputy Commissioner in making the settlement, may insist upon the Society to deposit some security, but the obligation to deposit security will be under the orders of the Additional Deputy Commissioner and not Rule 5 and it is thus always open to the Additional Deputy Commissioner to extend time in suitable cases.
18. The last point urged has no substance in our opinion. The fact that a number of fisheries have been settled with the respondent is no bar to
the settlement with him of the disputed fishery if he fulfils the conditions tinder Rule 13. The order of settlement cannot be set aside on the
ground that a number of fisheries have been settled with the respondent. There is therefore no force in the appeal No. 39(M) 58 and it is dismissed with costs. As regards the other appeals I need not add! anything further as the matter has been exhaustively dealt with by My Lord the Chief Justice.