The Indian Trawlers Association, Cochin and Others vs The District Collector, Ernakulam and Others

G. Viswanatha Iyer, J.—By this petition the petitioners seek for the issue of a writ of certiorari or other appropriate order to cancel Exits. P-1 to P-3 proceedings. Ext. P-1 is the Minutes of the conference of the people engaged in fishing held on 28-1-1972 at the Revenue Divisional Office. Fort Cochin. Ext. P-2 is a communication from the District Collector, Emakulam to the Secretary, Indian Trawlers Association enclosing the Minutes of the conference for the settlement of dispute between the canoe fishermen and mechanised boat operators held on 3-3-1972 at the Collectorate, Emakulam. Ext. P-3 is an order of Government dated 12-7-1972 by which the Government directed that the first two miles from the coast will be reserved for the non-mechanised boats. Fishing operation by mechanised boats in this area was prohibited thereunder.

There are four petitioners in this petition. Petitioner No. 1 is the Indian Trawlers Association represented by its Secretary. Petitioners 2, 3 and 4 are persons engaged in the fishing industry and who carry on fishing operations by the use of mechanised boats. By the use of these mechanised boats bottom fishing operations are carried on by the petitioners. There is another method of fishing, viz., surface fishing. This is generally adapted by country-craft-fishermen according to the traditional methods. According to the petitioners, there is no overlapping between these methods of fishing. By the use of mechanised vessels surface fishing is not possible and bottom fishing is not possible for the country crafts. Again, from the time mechanised vessels were introduced some 10 years back in this area there was no dispute regarding the fishing operations between the country-craft operators and the operators of the mechanised vessels. Recently, there was a depletion of marine catches, both surface and bottom species due to several reasons such as growth of seaweeds, lack of oxygen in water, migration of species, etc. Some disgruntled persons, taking advantage of a slight improvement in the bottom species of fishes began to create trouble and incite the operators of country crafts and made them believe that the operation by mechanised vessels caused surface fishes being driven away by the sound. They were also made to believe that the bottom trawling results in the destruction of the larvae. These country-craft operators made certain representations to the Collectors of the coastal districts. The District Collector. Ernakulam. convened a conference purported to be for the settlement of the dispute between these two groups in the Cochin area on 3-3-1972. There was a previous conference on 28-1-1972 convened by the R. D. O., Fort Cochin, for a similar purpose. In the conference convened by the R. D. O., in spite of expert opinion, a decision was taken that fishing operations by the canoe fishermen from Kannamaly to Fort Cochin will be conducted within 7 fathoms of the coast. At the conference on 3-3-1972. In spite of expert opinion, it was decided that mechanised boats having a length of 25 feet should be prohibited from fishing within 2 miles and those above 25 feet upto 3 miles from the coast. Further, the Government passed another order on 12th July, 1972, reserving the first two miles from the coast for non-mechanised boats and prohibiting fishing operations by the mechanised boats in this area. These are challenged by the petitioners as unreasonable restrictions on their freedom of fishing which is their main occupation. It is alleged that these proceedings and order violate Article 19(1)(g) of the Constitution and therefore they seek to quash these proceedings and the order.

On behalf of the State it is contended that there was real canflict between these two groups of operators, viz., those who carry on fishing operation by the use of country craft and those who carry on the operation by the use of mechanised boats. On account of this clash between these two groups disturbance to law and order was caused. Various methods were adopted by the Government to arrive at an amicable settlement between these two groups and for that purpose conferences were held by the R. D. O., Fort Cochin and the Collector, Ernakulam, on 28-1-1972 and 3-3-1972 respectively. In these conferences the representatives of both the groups attended and a unanimous decision was arrived at the terms of which are incorporated in the minutes of those conferences, copies of which are produced as Exts. P-1 and P-2. As these decisions at the conferences were taken unanimously, it is alleged the petitioners cannot impeach these proceedings under Article 226 of the Constitution. As these proceedings were not found to be effective, the matter was taken up at the Government level and after a detailed discussion of the position regarding this conflict between these two groups the Government thought that an order must be issued by the Government reserving the first two miles from the coast for the use of country crafts and to prohibit the mechanised boats from carrying on fashing operation from that area. Therefore, on 12-7-1972, Government passed Ext P. 3 order to that effect. It is contended that this order is only by way of regulation of the fishing operation. It does not in any way violate any fundamental rights or any statutory law. It is also contended that there is no fundamental right for fishing. On these grounds the State opposes the writ petition.

The question for consideration is whether the State is justified in issuing Ext. P-3 order prohibiting fishing operation toy mechanised) boats within, two miles of the sea coast. The State has the power of legislation over the territorial waters on matters covered by En-tries 1 and 21 of List II. VIIth Schedule of the Constitution. Nobody has got a fundamental right to fish. The right to fish in the territorial or tidal waters is a public or common right enjoyed by all the citizens. It is not a right incident to property. It is available to all the citizens of the Union. It is not confined to subjects under the jurisdiction of any State. (See Attorney-General for British Columbia v. Attorney-General for Canada 1914 AC 153. and A. M. S. S. V. M. & Co. v. State of Madras. AIR 1954 Mad 291. The State can make legislation regulating the exercise. In the absence of a legislation to avoid a disturbance to the public order or breach of the peace it can issue such executive orders as may be deemed necessary. The matter may have been different if the petitioners'' right were a fundamental right. The exercise of a fundamental right can be restricted only by a law and that law cannot go beyond a reasonable restriction of the right. Here another contention is that this order Ext. P-3 restricts or prohibits the carrying on of an occupation or a trade by the petitioners within the meaning of Article 19(1)(g). I do not think so. The right to carry on the trade or occupation is not in any way directly or indirectly affected by Ext. P-3. Even after Ext. P-3 the petitioners can continue to carry on the same trade or occupation. The fact that the petitioners are prohibited from carrying on the fishing operation by the use of mechanised boats in a particular area cannot be said to be a prohibition of the right to carry on a trade or occupation. The same petitioners can if they so mind, carry on the fishing operation in the prohibited area by the use of country boats. What is prohibited is only the use of mechanised boats in this area. The prohibition of the use of a particular method of fishing does not in any way restrict or interfere with the carrying on the trade. Therefore, the petitioners are not right in their contention that their fundamental right to carry on a trade or carry on an occupation of fishing is in any way, affected. As I said earlier, all citizens have a public right to fish in the territorial or tidal waters. If any clash between these two groups of fishing operators is apprehended, to avoid a breach of the peace or to maintain public order the State can regulate the mode of fishing in different areas. Ext. P-3 order was passed to avoid conflict between the two groups of fishing operators. The State is entitled to do it. The State is entitled to issue administrative orders on matters on which they can legislate if there is no legislation on those matters. In this case it is not the case of anybody that there is any legislation controlling the method of fishing in the territorial waters adjoining the State. Therefore. Ext. P-3 is not in any way illegal or violative of Article 19(1)(g) of the Constitution.

Ext. P-3 has no sanction behind it in the sense that if the fishing operation by mechanised boats is carried on by the petitioners within the restricted area there is no sanction for enforcing it. The State will have at the earliest moment to bring in a legislation on these matters. So that they may be in a position to enforce obedience to the regulation of the method of fishing operations. But, that is different from saying that "Ext P-3 is invalid. Ext. P-3, though is only an administrative order, is perfectly valid and it cannot be attacked. Exts. P-1 and P-2 are only the minutes of the conferences convened by the Revenue Divisional Officer and the Collector. They are not orders passed by any authority and therefore there is no room for the petitioners to complain that Exts. P-1 and P-2 are binding on them.

In the result, this original petition is without any substance. It is dismissed. No costs.