IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.51565 OF 2018 (GM-RES) BETWEEN:
AKHILA KARNATAKA PERSE-SEINE FISHERMEN’S SANGHA (R) MALPE FISHING HARBOUR, UDUPI DAKSHINA KANNA DISTRICT-576 101 REP. BY THE VICE PRESIDENT NAVEEN BANGERA S/O BOJA PUTRAN AGED ABOUT 44 YEARS. … PETITIONER (BY SRI.Y.R.SADASIVA REDDY, SR. COUNSEL A/W SRI B.RAMESH, ADV.) AND:
1. UNION OF INDIA REP BY MINISTRY OF AGRICULTURE & FARMERS WELFARE DEPARTMENT OF ANIMAL HUSBANDRY DAIRYING & FISHERIES, KRISHI BHAVAN NEW DELHI-110 001 2. STATE OF KARNATAKA REP. BY MINISTRY OF ANIMAL HUSBANDRY & FISHERIES DEPARTMENT OF ANIMAL HUSBANDRY & FISHERIES VIKASA SOUDHA, BANGALORE-560 001 3. DIRECTORATE OF FISHERIES IN KARNATAKA 3RD FLOOR, PODIUM BLOCK, V.V.CENTRE BANGALORE-560 001.
4. FISHERMEN’S DEEP SEA TRAWL BOAT ASSOCIATION (R) MALPE HARBOUR, MALPE UDUPI-576108 REPRESENTED BY ITS PRESIDENT KISHORE D. SUVARNA S/O DASATHIGALYA AGED ABOUT 55 YEARS AMBA NIVAS, NEAR BEACH MALPE-576108 UDUPI DISTRICT.
5. FISHERMEN’S DEEP SEA TRAWL BOAT ASSOCIATION (R) MALPE HARBOUR, MALPE UDUPI-576108 REPRESENTED BY ITS SECRETARY BHUVANENDRA KOTIAN S/O SOMAPPA SUVARNA AGED ABOUT 38 YEARS R/AT. BHUVANENDRA KOTIAN No.13-51, KUTHIPAADI PADUKERE, KUDREKARE POST KADEKAR UDUPI.
6. FISHERMEN’S DEEP SEA TRAWL BOAT ASSOCIATION (R) MALPE HARBOUR, MALPE UDUPI-576108 REPRESENTED BY ITS MEMBER KARUNAKARA S. SALIAN S/O SUMAPPA SUVARNA AGED ABOUT 43 YEARS R/AT. SRIRAM KALA MALPE UDUPI-576108.
7. FISHERMEN’S DEEP SEA TRAWL BOAT ASSOCIATION (R) MALPE HARBOUR, MALPE UDUPI-576108 REPRESENTED BY ITS MEMBER MAHESH SUVARNA S/O JAGANNATH PATHRAN AGED ABOUT 42 YEARS R/AT. FISHERIES ROAD BHADRAGIRI, BRAHAMAVARA UDUPI.
RESPONDENT NOs.4 TO 7 AMENDED VIDE COURT ORDER DATED 6-2-2019.
… RESPONDENTS (BY SRI.M.C.NAGASHREE, ADV. FOR R1 & R3 SRI Y.D.HARSHA, AGA FOR R-2 & R-3 SRI VIVEK SUBHA REDDY, SR. ADV. FOR SRI.SACHIN B.S., ADV. FOR R4 TO R-7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED:10.11.2017 ON THE BASIS OF OFFICE MEMORANDUM DATED:29.08.2016 VIDE ANNEXURE-B AS BEEING UNREASONABLE, OPPRESSIVE AND BEING VIOLATIVE OF ARTICLES 14, 19 AND 21 OF CONSTITUTION OF INDIA AND TO GRANT SUCH OTHER RELIEF AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.Y.R.Sadasiva Reddy, learned Senior counsel along with Sri.B.Ramesh, learned counsel for the petitioner.
Smt.M.C.Nagashree, learned counsel for the respondent Nos.1 and 3.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition, the petitioner inter alia seeks a writ of certiorari for quashment of order dated 10.11.2017 on the basis of office memorandum dated 29.08.2016 on the ground that the same is unreasonable, oppressive and violative of fundamental rights given to the petitioner under Articles 14, 19 and 21 of the Constitution of India. The petitioner also seeks certiorari for quashment of the order dated 25.03.2017.
4. In order to appreciate the petitioner’s grievance, few facts need mention which are stated infra. The petitioner is an association formed for promoting the benefit and welfare of the perse-seine fishermens. The fishing activities are carried out by the members of the petitioner – association in the coastal region. The Government of India issued an office memorandum dated 29.08.2016 considering the seriousness of inter sectoral conflicts in marine fisheries sector and with a view to manage the marine fishery resources to ensure sustainability in the sector, the Government of India decided to regulate the use or installation of LED lights, fish light attractors or any other light equipment in fishing gears on mechanized fishing vessels or motorized fishing crafts in the Indian Exclusive Economic Zone beyond 12 nautical miles and made a recommendation inter alia to the State Government and Union Territories not to permit under water lights but only to permit views of surface lights. On the basis of the aforesaid office memorandum, subsequently an order dated 10.11.2017 was issued by the Government of India by which fishing in economic zone was prohibited beyond territorial waters by bull or pair trawling as well as use or installation or operation of surface or submerged artificial lights / LED lights, fish light attractors or any other light equipment with or without generator on mechanized fishing vessel or motorized fishing craft for trawling, purse-seining and gill netting operations in the Indian Exclusive Economic Zone beyond territorial waters. The office memorandum issued on 29.08.2016 regarding use of LED light fishing was withdrawn.
5. Thereafter, another order dated 07.03.2018 was issued by the Government of India by which it was once again advised to take necessary steps to prevent use of LED lights fishing beyond and within territorial waters and to issue necessary Government order prohibiting destructive fishing methods including bull / pair trawling and use of artificial lights / LED lights, fish light attractors etc. The petitioner, in the aforesaid factual background has approached this Court.
6. Learned Senior counsel for the petitioner submitted that the members of the petitioner – association should be permitted to carry out fishing operations in their respective areas as per the terms and conditions of the license issued in favour of the members of the petitioner – association. It is also submitted that the members of the petitioner – association are ready and willing to furnish an undertaking that while carrying out fishing operations as per the terms and conditions of the license, LED lights shall not be used but only surface lights shall be used beyond 12 nautical miles. It is further submitted that the impugned notification dated 10.11.2017 imposes an unreasonable restriction on the rights of the members of the petitioner – association to carry on the business.
7. On the other hand, learned counsel for the respondent Nos.1 and 2 submitted that surface lights as well as use of LED lights have been completely banned and the office memorandum dated 29.08.2016 has been withdrawn. Learned Additional Government Advocate submitted that the Government of Karnataka has decided to follow the instructions issued by the Government of India in this regard and has placed on record the minutes of meeting held on 07.09.2018. Learned Senior counsel for the respondent Nos.4 to 7 submitted that by permitting the use of artificial lights including LED lights and surface lights, severe damage is being caused to the fishery wealth as the artificial lights including surface lights attracts the juvenile fishes, which can be caught. It is also submitted that Central Marine Fisheries Research Institute had sent a technical communication to the Deputy Director of Fisheries, Government of Karnataka vide communication dated 30.05.2016, in which is it stated that behavioral /physiological principles of fish attraction to the light has been investigated but no mechanism has been fully explained scientifically. It is further submitted that the Institute has made a recommendation that use of lights should not be allowed within the territorial waters up to 12 nautical miles in order to protect the interest of the traditional fishers. It is also argued that the right of the members of the petitioner – association to carry on the business is subject to reasonable restriction.
8. I have considered the submissions made by both the sides and have perused the record. The instant case is a case of maintaining a balance of interest between traditional fishermen and professional fishermen like the members of the association bearing in mind the fact that the natural wealth has to be preserved and the natural resources are exploited subject to regulation. It is pertinent to mention here that by order dated 10.11.2017, the directions have been issued to the State Governments to take necessary steps to prevent use of LED lights within and beyond the territorial waters. In pursuance of the aforesaid order, the Government of Karnataka has taken a decision in the meeting held on 07.09.2018 which reads as under:
“When the opinion of the CMFRI was sought on permitting bull trawling within 12 nautical miles they have opined that “The fishing pressure within 12 nautical miles is very high with large number of traditional, motorized and mechanized crafts operating variety of gears. Therefore, it is opined that the operation of bull trawls by mechanized trawlers within 12nm would further increase the fishing pressure and negatively impact the operations of the traditional small scale fishers in the region” This was brought to the notice of the chair.”
9. However, it is pertinent to mention here that Central Marine Fisheries Research Institute, by a communication dated 30.05.2016, had made a recommendation that light fishing may be permitted beyond the territorial waters subject to the conditions mentioned in the recommendation. The decision to permit the use of lights for the purpose of fishing beyond 12 nautical miles is a matter which falls within the room of policy. It is well settled in law that this Court, in exercise of powers of judicial review, will not interfere with the policy framed by the Government until and unless the same is shown to be arbitrary, irrational or perverse. This Court is not in a position to sit in an appeal over the policy decision which has been taken by the State Government. It is pertinent to mention here that the petitioner has not challenged the decision taken by the Government of Karnataka in this writ petition. Therefore, in the fact situation of the case and in view of the recommendation made by the Central Marine Fisheries Research Institute, this writ petition is disposed of with liberty to the petitioner to approach the competent authority with regard to the grievance raised in this petition. Needless to state that in case such a grievance is made, the competent authority shall consider and decide the representation which may be submitted by a speaking order after affording an opportunity of hearing to the authorized representative of the petitioner and the respondent Nos.4 to 7 in accordance with law.
Accordingly, the petition is disposed of.
Sd/- JUDGE RV