Ramnad District Nalivutor Meenaver Sangam And Others v. Assistant Director Of Fisheries (region) Rameswaram And Another

These Writ Petitions were taken up for final hearing by consent of all parties. Heard Mrs. Nalini Chidambaram, senior Advocate for petitioners in W.Ps. Nos. 1007, 1075 and 1076 of 1994 and Mr. V. Raghupathy, Addl. Government Pleader for the respondents 1 and 2 and Mr. S. Natarajan for impleaded parties. Writ petition No. 9065 of 1993 has been filed to call for the records relating to the order of the 1st respondent - the Assistant Director of Fisheries (Region), Rameshwaram, made in Na. Ka. No. 53/A/ 93-1 dated 27-1-1993 and to quash the same.

2. Writ Petition No. 7555 of 1993 has been filed by Ramnad District Nalivutror Meenavar Sangam represented by its President, for Mandamus directing the respondents to strictly implement the regulations and restrictions imposed on the mechanised boats by Section 5(3) read with the Schedule of the Tamil Nadu Marine Fishing Regulations Act, 1983. The petitioner in W. P. No. 1076 of 1994 (Hereditary Fishermen Association Mandapam) has been impleaded as party respondent in W.P. Nos. 9065/93 and 7555/ 93. W.P. No. 1075/94 has been filed by Mechanised Boat Fishermen Association, Mandapam to declare condition Nos. 2, 4 and 6 of Circular Na. Ka. 31/P/93 dated 16-1-1994 of the 2nd respondent placing restrictions on the fishing activity of the members of the petitioner Association. The same relief is asked for in W. P. No. 1076/94 W. P. No. 1007/94 has been filed to declare condition Nos. 2, 4 and 6 of the Circular No. Na. Ka. No. 1125/P/93 dated 15-1-1994 of the 2nd respondent placing restrictions on the fishing activity of the members of the petitioner Association as illegal and arbitrary. Though several points have been raised by both the parties in their respective writ petitions, in my view, writ petition Nos. 9065/93, 1007/94, 1075/94 and 1076/94 can be disposed of on a very short legal ground.

3. Mr. Nalini Chidambaram, learned senior Advocate for petitioners in some of the writ petitioners would submit that the 2nd respondent-Assistant Director of Fisheries, Fisheries Training Centre, Mandapam, has no authority under Act 8 of 1983, to impose any restrictions by way of executive orders and hence, in the absence of any Notification by the Government, the 1st and respondents viz., the Collector, Ramanathapuram District and the Assistant Director of Fisheries, Manadapam, cannot regulate, restrict or prohibit the fishing. Learned Senior counsel would urge that the impugned orders in W.P. Nos. 1007/94, 1075/94 and 1076/94 are ultra vires of Act 8 of 1983. Likewise, the impugned order in W.P. No. 9065/93 has been passed by the Assistant Director of Fisheries, Mandapam at Rameshwaram, dated 27-1-1993 by way of executive order. In my opinion, the argument advanced by the learned senior counsel, would equally apply to the order passed by the Assistant Director of Fisheries, Mandapam at Ramanathapuram dated 27-1-1993, under Section 5 of the Tamil Nadu Marine Fishing Regulation Act, 1983, the Government has got power to regulate, restrict or prohibit certain matters within the specified area by Notification. Section 5 sub-section (1) enables the Government to regulate, restrict or prohibit the fishing in any specified area by such class or classes of fishing vessels as may be specified in such notification. Section 5 of the Act reads thus :-

"Power to Regulate, restrict or prohibit certain matters within specified area

(1) The Government may, having regard to the matters referred to in sub-section (2) by notification -

(a) regulate, restrict or prohibit the fishing in any specified area by such class or classes of fishing vessels as may be specified in such notification; or

(b) regulate or restrict the number of fishing vessels which may be used for fishing in any specified area; or

(c) regulate, restrict or prohibit the catching in any specified area of such species of fish and for such period as may be specified in the notification; or

(d) regulate, restrict or prohibit the use of such fishing gear in any specified area as may be specified in the notification; or

(e) fix the hours in a day during which any person may carry on fishing in any specified area using such class or classes of fishing vessels as may be specified in such notification.

(2) In issuing a notification under subsection (1), the Government shall have regard to the following matters, namely :-

(a) the need to protect the interests of different sections of persons engaged in fishing particularly those engaged in fishing using traditional fishing craft such as catamaran, country craft or canes;

(b) the need to conserve fish and to regulate fishing on a scientific basis;

(c) the need to maintain law and order in the sea;

(d) such other matters as may be prescribed.

(3) Notwithstanding anything contained in sub-sections (1) and (2), no owner or master of a mechanised fishing vessel shall use or cause or allow to be used such fishing vessel for fishing operation in the sea within three nautical miles from the coast line in the State and the owner of master of a mechanised fishing vessel shall use or cause or allow to be used such mechanised fishing vessel only beyond three nautical miles from the coast line in the State and such operation beyond three nautical miles shall be subject to the conditions specified in the schedule to this Act.

(4) Notwithstanding anything contained in sub-sections (1) and (2), no owner or master of a deep sea fishing vessel shall use or cause or allow to be used such fishing vessel for fishing operation in the sea within three nautical miles from the coast line in the State and the owner or master of a deep sea fishing vessel shall use or cause or allow to be used such deep sea fishing vessel only beyond three nautical miles from the coast line in the State and such operation beyond three nautical miles shall be subject to such conditions as the Government may, by notification, specify"*

.

Section 5(2) provides that the Government shall have regard to the matters mentioned in sub-clause (a) to (d) while issuing a Notification under sub-section (1) of Section 5. Under Section 5(2), the Government by issuing a Notification shall have regard to the matters namely, need to protect the interests of different sections of persons enaged in fishing particularly those engaged in fishing using traditional fishing craft such as catamaran, country craft or canes. It further provides the need to conserve fish and to regulate fishing on a scientific basis, the need to maintain law and order in the sea and such other matters as may be prescribed. Section 5(3) provides that no owner or master of a mechanised fishing vessel shall use or cause or allow to be used such fishing vessel for fishing operation in the sea within three nautical miles from the coast line in the State and that the owner or master of a mechanised fishing vessel shall use or cause or allow to be used such mechanised fishing vessel only beyond three nautical miles from the coast line in the State and such operation beyond three nautical miles shall be subject to the conditions specified in the Schedule to the Act. Section 5(4) deals with the deep sea fishing vessel which shall be used by the owner or master for fishing operation in the sea within three nautical miles from the coast line in the State and the owner shall use the deep sea fishing vessel only beyond three nautical miles from the coast line in the State and such operation beyond

"three nautical miles shall be subject to such conditions as the Government may, by notification, specify. It is thus clear from Section 5 of the Act that the Government has authority to regulate, restrict or prohibit the fishing in any specified area only by way of Notifications as provided in the Section itself and not by executive orders. All the impugned orders referred to above, are not by way of notification issued by the authorities concerned exercising their power under Section 5 of the Act. The authorities have only issued executive orders, which in my opinion, and as rightly contended by the senior counsel, is beyond the power and authority of the respondents 1 and 2 namely the Collector and the Assistant Director of Fisheries. The respondents 1 and 2 cannot regulate, or restrict or prohibit the fishing by issuing executive orders. Any regulatory measures can be only by way of notification. Since the impugned orders are in the nature of executive directions, the impugned orders cannot stand and hence the impugned orders in W. P. Nos. 1007/94, 1075/94, 1076/94 and 9065/93 are quashed. There cannot be any objection in allowing the writ petition No. 7555/93 which has been filed for Mandamus directing the respondents to strictly implement the regulations and restrictions imposed on the mechanised boats by Section 5(3) read with the Schedule of the Tamil Nadu Marine Fishing Regulations Act, 1983. Accordingly W.P. No. 7555/93 is allowed.

4. All the above Writ Petitions are disposed of accordingly. No costs. In view of the disposal of the main Writ Petitions all the Writ Miscellaneous petitions are dismissed.

These petitions having been set down this day for being mentioned in the presence of Mr. S. Natarajan, Advocate for the petitioner in W.P. Nos. 7555 and 9065/93 and for the petitioner in W.M.P. Nos. 11916 and 14078/ 93 and for the 3rd respondent in W.Ps. 1007, 1075 and 1076/94 and of Mrs. Nalini Chidambaram, Senior Counsel for M/s. S. Silambanan and B. Sai Chandra Vadhan, Advocates for the petitioner in W.P. Nos. 1077, 1075 and 1076 of 1994 and for the petitioner in W.M.Ps. Nos. 1643, 1644, 1759 1960 to 1962 of 1994 and for the 3rd respondent in W.P. 755 and 9065/93 and of Mr. V. Raghupathy, Additional Government Pleader on behalf of the respondents 1 and 2 in all the petitions, the court made the following order :-

The matter is listed to-day before this Court for being mentioned at the instance of the impleaded respondent namely Ramnad District Nalivutror Meenavar Sangam in W.P. No. 7555 of 1993. A memo dated 1st March, 1994 has been filed requesting this Court to clarify the order dated 18-2-1994 made in batch of writ petitions. Writ Petition Nos. 9065/93, 1007/94, 1075/94 and 1076/94 and W.P. No. 7555/93 were allowed by this Court on 18-2-1994. W.P. No. 7555/93 was filed praying for issue of Writ of Mandamus directing the respondents to strictly implement the regulations and restrictions imposed on the mechanised boats by Section 5(3) read with the Schedule to the Tamil Nadu Marine Fishing Regulations Act 1983. In the concluding portion of my order in W.P. No. 7555/93 I have ordered as follows :

"*

There cannot be any objection in allowing the Writ petition No. 7555/93 which was been filed for Mandamus directing the respondents to strictly implement the regulations and restrictions imposed on the mechanised boats by Section 5(3) read with the Schedule of the Tamil Nadu Marine Fishing Regulations Act, 1983. Accordingly W.P. No. 7555/93 is allowed".

At the time when the matter was argued earlier, Mrs. Nalini Chidambaram, learned senior counsel for the impleaded respondent in W.P. No. 7555/93 representing mechanised fishing vessels argued that the Act and the Schedule thereunder do not ban night fishing. However, the learned senior counsel has no objection for the Writ Petition No. 7555/93 being allowed as the prayer was only for the implementation of S. 5(3) read with the Schedule of the Tamil Nadu Marine Fishing Regulations Act, 1983. Accordingly, the said writ petition was allowed. It is now represented by the learned senior counsel that the Assistant Director of Fisheries on a misconception of the scope of the order dated 18-2-1994 is not permitting the mechanised boat fishermen to fish during the nights on the ground that this Court by its order dated 18-2-1994 allowed W.P. No. 7555/93 etc. and has banned night fishing by the mechanised boat fishermen.

5. I make if clear that this Court did not hold that the Act and the Schedule thereunder banned night fishing by the mechanised boat fishermen. This Court only directed the authorities to implement S. 5(3) read with the Schedule of the Tamil Nadu Marine Fishing Regulations Act, 1983. The order is clarified as above. It is for the authorities to give effect to the provisions of S. 5(3) read with the Schedule of the Tamil Nadu Marine Fishing Regulations Act, 1983.

Order accordingly.