IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 OP.No. 12221 of 1995(E) ------------------------------ PETITIONER(S): ---------------------- BREDEENA NAZARETH, DEENA MANZIL, MUKKAD, KAVANAD, KOLLAM – 3. BY ADV. MR.B.SURESH KUMAR RESPONDENT(S): ----------------------- 1. ASSISTANT REGISTRAR, FISHERIES, KOLLAM. 2. DEPUTY DIRECTOR OF FISHERIES, (ADJUDICATING OFFICER), KOLLAM. 3. DISTRICT COLLECTOR, KOLLAM. GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JVT O.P.No.12221 of 1995 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the mahazar dated 8.1.93 prepared by the 1st respondent. Ext.P2 :- Copy of the order dated 14.1.1993 passed by the 2nd respondent. Ext.P3 :- Copy of the appeal memorandum submitted by the petitioner before the 3rd respondent dated 15.1.1993. Ext.P4 :- Copy of the order dated 15.6.1993 passed by the 3rd respondent. Respondent's Exhibits :- NIL //True Copy// P.A. To Judge S. SIRI JAGAN, J ---------------------- O.P.No.12221 of 1995 --------------------------------- Dated this the 9th day of March 2010 J U D G M E N T The petitioner is the owner of a fishing vessel. That vessel was found in areas were fishing operations were prohibited as per the notification issued under the Kerala Marine Fishing Regulation Act 1980 (the Act for short). Accordingly, that vessel was impounded by the 1st respondent on 08.01.1993. The adjudicating authority under the Act passed Ext.P2 order finding the petitioner guilty of fishing in prohibited areas and imposed a penalty of Rs.35,000/-. The petitioner's appeal against that order was rejected by the District Collector, who is the Appellate authority under the Act, by Ext.P4 order. This original petition is filed challenging Exts.P2 and P4 orders. 2. The petitioner attacks the impugned orders on three grounds. First is that, the petitioner was not actually fishing in prohibited areas, but on account of engine trouble the boat happened to drift towards that area when the petitioner's vessel was intercepted. The second is that under Sec.17(1) of the Act O.P.No.12221 of 1995 -2- the maximum penalty that could have been imposed is only Rs.5000/- as the value of the fish seized was below Rs.1,000/-. The third is that in any event the penalty of Rs.35,000/- imposed is disproportionate to the gravity of the offence stated to have been committed by the petitioner. The learned Government Pleader argues the matter on the basis of contentions raised in the review petition. 3. I have considered the rival contentions in detail. The original petition was originally disposed of by judgment dated 08.02.2005, wherein while affirming the finding that the petitioner's vessel in fact was found engaging in fishing operation in prohibited areas, this court upheld the contention of the petitioner that the maximum penalty that could have been imposed is only Rs.5,000/-. But later on, the state filed a review petition producing Annexure-1 amendment to the Act, wherein, Sec.17 was amended making a provision for maximum penalty of Rs.50,000/- and minimum penalty is Rs.25,000/-. Consequently R.P.No.787 of 2005 filed by the state was allowed and the judgment was recalled. It is pursuant thereto that this original petition comes up for hearing before me. O.P.No.12221 of 1995 -3- 4. As regards the first contention of the petitioner, it is a question of fact, as to whether the petitioner's vessel was actually engaged in fishing operations in prohibited areas. Admittedly the petitioner's vessel was intercepted in an area where fishing was prohibited as per the provisions of the Act. The petitioner's contention that on account of engine trouble the boat happened to drift to the prohibited area did not find favour either with the Adjudicating authority or the Appellate authority. That is a pure finding of fact. I can interfere with the findings entered by the Adjudicating authority and the Appellate authority only if the finding is demonstrably perverse. On a reading of the impugned orders I do not find any perversity in the finding entered into by the Adjudicating and the Appellate authorities. Therefore, I am not inclined to countenance the contention of the petitioner on the first point. 5. As far as the second contention is concerned Sec.17 of the Act was amended revising the maximum and minimum penalty to Rs.50,000/- and Rs.25,000/- respectively, which came into force with effect from 15.10.1985. The petitioner's vessel was impounded on 08.01.1993. Therefore the second contention O.P.No.12221 of 1995 -4- of the petitioner also do not find favour with me. 6. Coming to the last contention I find some merit in the contention of the petitioner in view of the fact that the amount of the fish available in the boat was negligible. However, even for that, a minimum penalty prescribed is Rs.25,000/-. That being so I cannot reduce the penalty below Rs.25,000/-. Taking a lenient view, therefore, I reduce the penalty to Rs.25,000/-. In all other respects the impugned orders would stand confirmed. 7. If the petitioner has already paid the penalty amount of Rs.10,000/-, the same shall be refunded within one month from the date of receipt of a copy of this judgment. If the petitioner has not paid the penalty, the same shall be paid within one month, failing which the same shall be recovered by resorting to revenue recovery proceedings. The Original Petition is disposed of as above. Sd/- S. SIRI JAGAN, JUDGE //True Copy// P.A. To Judge Jvt