PRAYER Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the proceedings of the 2nd respondent made in A3/6357/06 dated 11.08.2006 and quash the same and direct the respondents herein their agents, subordinates or men to abide by schedule to Section 5(3) of the Tamil Nadu Marine Fishing Regulation Act, by carrying on fishing operations between 5 A.M. to 9 P.M. on the same day from Tuticorin berthing harbour.
W.P.No.7061 of 2009:
Visaipadagu Meenava Thozhilalar Munetra Sangam, R.C.No.48/94 rep. by its President, A.Thirukudumbadasan, South Street, Vembar, Thoothukudi District. ... Petitioner Vs
1.The Director, Fisheries Department, Teynampet, Chennai.
2.The Assistant Director, Fisheries Department, Thoothukudi, Thoothukudi District.
3.Deputy Superintendent of Police, Vilathikulam, Thoothukudi District.
4.The Revenue Divisional Officer, Kovilpatti, Thoothukudi District.
5.Vembar Varrara Visaipadagu Owner Sangam, rep. by its President, East Street, Vembar, Velathikulam Taluk, Thoothukudi District. ... Respondents PRAYER Petition filed under
Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, forbearing the 5th respondent and his men from carrying the fishing operations except 5 A.M. to 9.00 P.M. on the same day as provided under Section 5(3) of the Tamil Nadu Marine Fishing Regulation Act, 1983 in Vembar Coastal Region and to direct the other respondents to implement the Tamil Nadu Marine Fishing Regulation Act, 1983 strictly.
!For petitioner in W.P.No.2129/2007 ... Mr.M.Joseph Thatheus Jerome For Petitioner in W.P.No.7061/2009 & 3rd respondent in W.P.No.2129/2007 ... Mr.G.Chandrasekar ^For Respondents 1 & 2 in W.P.No.2129/2007 & for respondents 1 to 4 in W.P.No.7061/2009 ... Mr.Pala Ramaswamy, Spl. Government Pleader For 5th respondent in W.P.No.7061/2009 ... Mr. M.Subash Babu :COMMON ORDER By consent the above writ petitions have taken up for final disposal. Since the issue involved is identical in both the cases, they are disposed of by the common order.
2.W.P.No.2129 of 2007 has been filed by a Association called "Thoothukudi Mavatta Nattupadagu meenava Samuthaya Sangam". The prayer in the writ petition is to quash an order passed by the second respondent dated 11.08.2006 and to direct the respondents to abide by the schedule to Section 5(3) of the Tamil Nadu Marine Fishing Regulation Act, 1983, by carrying on fishing operations between 5 A.M. to 9 P.M. on the same day from Tuticorin berthing harbour.
3.W.P.No.7061 of 2009 has been filed by another Association called "Visaipadagu Meenava Thozhilalar Munetra Sangam". The prayer in the writ petition is for a writ of Mandamus, to forbear the 5th respondent, who is the Vembar Vattara Visaipadagu Owner Sangam, from carrying on fishing operation except form 5 A.M. to 9 P.M. on the same day as provided under Section 5(3) of the said Act in Vembar Coastal Region and direct the other respondents to implement the provision of the Act strictly.
4.The facts leading to the filing of the writ petition is as follows;
The petitioner in W.P.No.2129 of 2007 is a society whose members are fishermen using Catamaram for their fishing operations. These Catamarams are the non-mechanized boats as defined under Section 3(g) of the Tamil Nadu Marine Fishing Regulation Act, 1983 (hereinafter referred to as "the Act"). The grievance of the petitioner association is that the mechanized boats indulged in indiscriminate fishing operation and created friction with the members of the petitioner association and the representatives were sent to the Government by the members of the association to protect their livelihood. There were earlier writ petitions filed before this Court, in which according to the petitioner, the rights of their members have been protected. It is further submitted that in terms of Section 5 of the Act, the Tamil Nadu Fisheries Department is empowered to prohibit and regulate the fishing operation and by such power they are entitled to 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 machinery as may be specified in the notification. It is further contended that by virtue of Section 5 of the Act, they are empowered to regulate, restrict or prohibit catching of fish in any specified area, the use of fishing gear and other motors. Further it is stated that in terms of the said power, the fishing operations of mechanized fishing machinery has been regulated and they shall fish from 5 A.M. to 9 P.M. on the same day beyond 3 nautical miles only. Contrary to the said regulation, the impugned order has been passed by the second respondent and it is contended that the same is without jurisdiction and liable to be struck down as arbitrary and it is based upon misrepresentation and malafide becoming an act of fraud against the orders passed by this Court on earlier occasion.
5.Mr.M.Joseph Thatheus Jerome, learned counsel appearing for the petitioner in W.P.No.2129 of 2007, by relying upon an earlier order passed by this Court in W.P.No.39122 of 2003, etc., batch dated 13.02.2003, would contend that it is the duty of the Government to implement the time schedule which has been fixed and the respondents 1 & 2 cannot be a party to such an illegal order and it amounts to violation of the directions issued by this Court in the said batch of writ petitions. Therefore, the learned counsel would submit that the prayer in the writ petition has to be allowed and the regulations issued under the statutory provisions have to be strictly implemented.
6.Mr.G.Chandrasekaran, learned counsel appearing for the petitioner in W.P.No.7061 of 2009 would contend that the members of the petitioner Sangam are fishery Coolies working in trawlers and mechanized boats, and would contend that about 25 mechanized boats have been used for fishing and they are violating the time regulation and they as fishery coolies are affected and several criminal cases are pending against the members of their association and therefore, they have approached this Court for strict implementation of the time regulation provided under Section 5(3) of the Act.
7.A Counter affidavit has been filed by the Assistant Director of Fishery stating that time specification between 5 A.M. to 9 P.M. on the same day is followed scrupulously by the mechanized boats at Vembar. It is further contended that the main intention of the Peace Committee meeting convened on 05.09.2009 is only to maintain law and order in Vembar Village and after having participated, now the petitioner in W.P.No.7061 of 2009 have stated that they have been compelled to participate in the meeting and forced to sign the memorandum of understanding. It is further submitted that there is no violation of the time schedule prescribed under Section 5(3) of the Schedule to the act as well as there is no violation of the earlier orders passed by this Court.
8.Mr.M.Subash Babu learned counsel appearing for the 5th respondent in W.P.No.7061 of 2009 would contend that on 05.09.2009 a 'Peace Committee Meeting' was held to discuss several issues among the fishermen and various other associations, and consensus were arrived at. Further he would contend that the members of 5th respondent association are carrying on fishing operations within the time prescribed under Section 5(3) and therefore, he prayed for dismissal of the writ petition.
9.I have carefully considered the submissions raised on either side and perused the materials on record. The Tamil Nadu Marine Fishing Regulation Act, 1983 was enacted to provide for regulation, restriction and prohibition of fishing by fishing vessels in the sea along the whole or part of the coast line of the State.
10.Section 3(e) of the Act reads as follows;
"(e)"fishing Vessel" means a ship or boat, whether or not fitted with mechanical means of propulsion, which is engaged in sea-fishing for profit and includes-
(i)a deep sea-fishing vessel,
(ii)a mechanised fishing vessel
(iii)a catamaran
(iv)a country craft, including Vallom, or
(v)a canoe, engaged in sea-fishing."
11.Section 3(g) of the Act defines "mechanized fishing vessel"
which does not include a "deep sea fishing vessel". Section 3(i) of the Act states "port" has been defined to mean the space within such limits as may, from time to time, be defined by the Government by notification, for the purposes of this Act.
12.In terms of Section 5(3) of the Act, notwithstanding anything contained in Section 5(1) & (2), no mechanized fishing vessel shall be allowed for fishing operation in the sea within three nautical miles from the coast line in the state and they shall be allowed to use such mechanized fishing vessel only beyond the three nautical miles from the coast line in the State and even such operation beyond three nautical miles shall be subject to the condition specified in the schedule of the Act. Section 6 of the Act provides for penal provision for contravention of any notification made under Section 5.
13.In the schedule to the Act, which has been issued under Section 5(3), it has been stated that the mechanized fishing vessel referred to in sub Section 3 of Section 5 shall leave the notified place of berth or anchoring only after 5 A.M. and the mechanized fishing vessel shall report back at the notified place of berth concerned not later than 9 P.M. and such mechanized fishing vessel shall remain at the notified place of berth or anchoring till 5 A.M. of the following day. In the explanation given to the schedule, the notified place of berth or anchoring in respect of a mechanized fishing vessel shall be the place of berth or anchoring which the authorised officer shall specify. Thus it is to be seen that the right of carry on fishing operation by the different category of fishing vessel has been regulated by the statute. Therefore, all the parties to the present proceedings and all persons who fall under the scope of the Act are bounded by such regulations. Section 5(3) read with Schedule clearly states that the mechanized vessels are not allowed to carry on fishing operations within three nautical miles from the coast line of the State and the said mechanized fishing vessels shall leave the notified place of berth or anchoring only after 5 A.M. and return back to the notified place of berthing not later than 9 P.M. and they shall anchor till 5 A.M. of the following day. Therefore, these mechanized fishing vessels could commence their operation only after 5 A.M. in the morning and return back at 9 P.M. on the same day and remain in the place of berth till 5 A.M. on the following day.
14.This Court, in earlier batch of cases in W.P.No.39122 of 2003 etc., batch dated 13.02.2003 has held that it is the duty and responsibility of the Government themselves, more particularly the District Administration to implement the time schedule, distance, licence and registration rules, etc., by strictly enforcing the relevant provisions applicable to both the sectors in order to facilitate venturing into the sea and to prevent the law and order among the two sectors namely, the members of the Mechanized Boat Fishing Development Association and members of the Kattumara Meenava Samuthaya Sangam.
15.This order has become final and binding upon the parties as well as upon the State. The impugned order in W.P.No.2129 of 2007 has been passed by the second respondent. Under the provisions of the Act, an authorised officer has been nominated by the Government under Section 4 of the Act. The second respondent is not the authorised officer under the Act and therefore, I am satisfied that the impugned order passed by the second respondent is without jurisdiction. The second respondent has stated as if a petition has been given before the District Collector during the 'Grievance Day' and therefore, such order has been passed, whereby the mechanized boats have been permitted to carry on fishing operations from 5 A.M. to 10 P.M. This in my view is clearly contrary to the statutory restrictions provided under Section 5(3) read with Schedule of the Act. Therefore, the impugned order is liable to be set aside.
16.The learned counsel for the petitioner would submit that a statement has been made in the counter affidavit filed by the Assistant Director of Fishery, saying that the time specification between 5 A.M to 9 P.M. on the same day is followed scrupulously by the mechanized boats at Vembar. The learned counsel would submit that as per the schedule issued under Section 5(3), the mechanized fishing vessels shall return back at the notified place of berth on the same day. It is further submitted that Vembar is not one such notified place and therefore, the statement made in the counter affidavit is contrary to the statutory conditions. Further the learned counsel would submit that in terms of Rule 6 of the Tamil Nadu Marine Fishing Regulation Rules, 1983 every owner of mechanized boat shall arrange to berth his boat in the fishing harbour provided for it by the Government or in a place notified by the authorised officer. Therefore, the learned counsel would submit that the question of berthing these mechanized fishing boats at Vembar does not arise since it is not a fishing harbour, approved by the Government nor it is a place notified by the authorised officer, as could be seen from Section III of the Schedule to the Tamil Nadu Maritime Board Act, 1995.
17.The above submission of the learned counsel for the petitioner deserves to be accepted, since these fishing vessels have specific notified berth and Vambar is not a notified berth or a fishing harbour and therefore, they are not entitled to berth or anchor their vessels at Vambar. The respondents 1 & 2, who are implementing authority of the various notification and regulatory measures issued by the Government, have no jurisdiction to alter the time stipulated during which hours they are permitted to carry on fishing operation. Further there is no jurisdiction for the respondents 1 & 2 to alter the statutory fixed time schedule, by consent of parties or under the guise of conducting a "peace Committee'.
18.In view of the above reasons, W.P.No.2129 of 2007 is allowed and the impugned order is set aside and the respondents are directed to abide by the schedule of Section 5(3) of the Act, by carrying on fishing operations between 5 A.M to 9 P.M. on the same day from the Tuticorin berthing harbour and strictly follow the berth or anchoring place as notified by the Government or the authorised officer in this regard.
19.In view of the order passed in W.P.No.2129 of 2007, W.P.No.7061 of 2009 is also allowed on the same lines. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.
gcg To
1.The Director, Fisheries Department, Teynampet, Chennai.
2.The Assistant Director, Fisheries Department, Thoothukudi, Thoothukudi District.
3.Deputy Superintendent of Police, Vilathikulam, Thoothukudi District.
4.The Revenue Divisional Officer, Kovilpatti, Thoothukudi District.