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Judgment
Curgenven, J.—This Criminal Revision Petition is presented against an order of the Joint Magistrate of Ramnad u/s 147 of the Criminal
Procedure Code passed in the following circumstances. There is a system of fishing, well-known upon this coast, whereby a long net is hung like a
curtain in the sea, being supported by floats and kept vertical by weights. This net is laid parallel to and at some distance from the shore, and is
then pulled in by means of ropes fixed to the two ends. In this way a catch of fish is landed. In the case now under reference, the system embraced
the use of successive nets, and further particulars of it are given in the learned Joint Magistrate''s order. It was worked by seven fishing-boats,
which were originally owned by Mahomedans; but sometime ago Hindus acquired what is described as a 2| share in the seven boats - in other
words the shares enjoyed by the Mahomedans and the Hindus were in the ratio of 5 to 3. Disputes subsequently arose between these two sets of
owners due, it has been found, to the Hindus refusing to> conform to the customary method of working the boats in laying and drawing the nets,
and insisting upon fishing on Fridays and Mahomedan holidays. This naturally provoked the Mahomedans, being, it is said, in breach of the
understanding upon which the Hindus acquired their interest; and the Joint Magistrate has found that the dispute is likely to cause a breach of the
peace. He has accordingly passed an order u/s 147 of the Criminal Procedure Code, directing the Hindus to fish only in accordance with the long-
established custom of each boat taking its turn, and not to fish at all on Fridays and Mahomedan holidays.
This order has been attacked before us upon two grounds. It is argued in the first place that for the purposes of Section 147 the open sea is
beyond the Magistrate''s territorial jurisdiction. Secondly, that the Mahomedans have no legal right to restrain the Hindus from fishing in any manner
they please.
The first point turns upon the question whether the sea,. regarding the alleged right of user of which the dispute exists, is within the local limits of
the Joint Magistrate''s Jurisdiction; because that is one of the conditions necessary for the application of the section. We have heard a very
interesting argument upon this question, which is undoubtedly a question of great difficulty. There is no authority directly in point in this country, and
indeed very little in any reported Indian decision which would assist us to a right conclusion. The contention that the ordinary Criminal Jurisdiction
of a Magistrate extends M only to the water''s edge has been urged before us by citation of English law, particularly of the leading case, The
Queen v. Keyn (1876) 2 Ex. Dn. 63. We are reluctant to leave the point undecided having regard to the labour which has been expended in
presenting it to us. But on the second point taken in this petition we think that no such obscurity or scope for difference of opinion exists, and our
decision upon it will suffice for the disposal of the case. In these circumstances, and as the question of territorial jurisdiction is not likely to arise
frequently in practice, we think it preferable that a pronouncement upon it should await an occasion when its decision is unavoidable.
Turning then to the second point, a reference to the section will show that there must not only be a dispute regarding an alleged right of user of
any land or water but that, under Sub-section (2), it must appear to the Magistrate that such right exists. By ''right'' is meant, of course, legal right,
and the purpose of the section, there can be no doubt, is by an order following a summary inquiry to prohibit interference with the exercise of a
legal right. Sub-section (4) makes such an order subject to any subsequent decision of a Civil Court. Now in the present case the learned Joint
Magistrate, while accepting the evidence of the custom regulating the fishing, has deliberately abstained from entering into the question whether
such a custom gives rise to any rights legally enforceable. He has not put to himself the question whether the petitioners before him would be able,
by process of law, to restrain the respondents from doing the things which he has directed them not to do.
If we were satisfied that such a right did in fact exist, such an omission would not justify us in interfering with an order which in other respects
appears to be unexceptionable-But if the right to fish in the sea, which every man enjoys, cannot be taken away from him by contract, custom,
prescription, or otherwise, it is evident that no such ''right'' can be found as will afford the Court ground for action under the section. It appears to
be indisputable that in general none can acquire a right, exclusive against the public or any other person, to fish in any particular area of the open
sea, or in that part of it, within three miles of the shore, known as territorial waters. ""The right of fishing in the sea being common to all subjects of
the realm, a prescription for such a right annexed to a tenement is bad"" Ward v. Creswell (1741) Willes 265 : 125 E.R. 1165 cited of Coulson &
Forbes on Waters and Land Drainage, 5th Edn. Further quotations from the same case are to be found in a judgment by Westropp, J. in Baban
Mayacha v. Nagu Shravucha I.L.R.(1876) 2 Bom. 19 and in particular.
This prescription, therefore, for a right common to all the subjects of the realm cannot be supporced. A man might as well prescribe that he, and all
whose estate he has, have a right to travel on the King''s highway as appurtenant to his estate.
It follows, we think, that as the right to fish in the sea cannot form the subject-matter of property, or be enjoyed as an easement, so no one can
by contract or otherwise relinquish to another his right or any part of it. If any such contract has been made, the Civil Court will not enforce it,
whatever other remedies may be open to the aggrieved party to the contract. Accordingly in the present case we are unable to hold, in the terms of
Sub-section (2) to Section 147, "" that such right exists"", i.e., a right to restrain the petitioners before us from fishing except in a certain manner.
That being so, an essential condition for an order under the section fails, and the order cannot be maintained. It is much to be hoped that, however
the law may stand, the parties will have the good sense to come to an understanding with each other, and compose this regrettable dispute.
We allow the petition and set aside the order.