IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).No. 18306 of 2003(D) ------------------------------------ PETITIONER(S): ----------------------- 1. DASAPPAN, KUNNUNKAL, THAIKKATTUSSERY, CHERTHALA. 2. KOCHAPPA VELAYUDHAN, SHAILA NIVAS, MANAPPURAM.P.O, CHERTHALA. 3. MANIAN,(CHAKRAPANI), PULICKAL, THAIKKATTUSSERY, MANAPPURAM.P.O, CHERTHALA. 4. SIVA PRADEEP, MANNATH, THAIKKATTUSSERY, MANAPPURAM. P.O, CHERTHALA. 5. VIJAYA KUMAR, S/O VAVA VIJAYAN, PULICKAL, THAIKKATTUSSERRY, MANAPPURAM.P.O, CHRTHALA. 6. SATHEESAN, KIZHAKKE ADINATIL, THAIKKATTUSSERY, MANAPPURAM P.O., CHERTHALA. 7. KUMARAN RADHAKRISHNAN, VADAKKEVELI, THAIKKATTUSSERY, MANAPPURAM P.O, CHERTHALA. BY ADV. SRI.SHAJI P.CHALY RESPONDENT(S): ------------------------ 1.STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FISHERIES, WP(C).No. 18306 of 2003(D) THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF FISHERIES, ALAPPUZHA. 3. DEPUTY DIRECTOR OF FISHERIES, KOTTAYAM. *ADDL. RESPONDENTS 4 &5 IMPLEADED: 4. KUNJAN VELAYUDHAN, ALUNKAL, MANAPPURAM (P.O) CHERTHALA. 5. JAYANANDAN, S/O. CHANDRASEKHARAN, ALUNKAL HOUSE, MANAPPURAM (P.O) CHERTHALA. * ADDL. RESPONDENTS 4 AND 5 ARE IMPLEADED AS PER ORDER DATED 11.7.2003 IN I.A NO. 6381/2003. ** ADDL. RESPONDENTS 6 TO 8 IMPLEADED: 6.N.S. SHAJI, S/O.SANKARAN, PULIYANTHARA HOUSE, VADAKKEMURI VILLAGE, VAIKOM TALUK. 7. A. RAMESAN, S/O.AYYAPPAN, THURUTHEN HOUSE, VADAKKEMURI VILLAGE, VAIKOM TALUK. 8. KOCHUPILLA NARAYANAN, PUTHANTHARAYIL HOUSE, VADAKKEMURI VILLAGE, VAIKOM TALUK. **ADDL. RESPONDNTS 6 TO 8 ARE IMPLEADED AS PER ORDER DATED 11.7.2003 IN I.A.NO.7119/2003. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR ADDL.R4 & R5 SRI.WILSON URMESE FOR ADDL.R6 TO R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2011, ALONG WITH WPC NO. 31346 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18306 of 2003(D) APPENDIX PETITIONR'S EXHIBITS: EXHIBI P1- TRUE COPY OF THE REPRESENTATION DATED 23.08.00 SUBMITTED BY THE PETITIONERS TO THE 1ST RESPONDENT. EXHIBIT P2- TRUE COPY OF THE JUDGMENT DATED 15/01/01 IN O.P.NO.32133/2000 ISSUED BY THIS HON'BLE COURT. EXHIBIT P3- TRUE COPY OF THE G.O.(RI)NO.194/2001/F &PD DATED 25.04.2001 ISSUED BY GOVT. OF KERALA. FISHERIES & PORTS (C)DEPARTMENT. EXHIBIT P4- TRUE COPY OF THE JUDGMENT DATED 4.12.90 OF THIS HON'BLE COURT IN OP/10933/85. EXHIBIT P5- TRUE COPY OF THE GOVET. ORDER NO.GO(RI) NO.52/2001 LAND PD DATE 7.2.00. EXHIBIT P6- TRUE COPY OF THE NOTICE ISSUED TO THE 2ND RESPONDENT DATED 24.05.2003. RESPONDENTS'EXHIBITS: NILL. //TRUE COPY// P.A.TO JUDGE. K.SURENDRA MOHAN, J. ----------------------------------------- W.P.(C).Nos.18306 & 31346 of 2003 ---------------------------------------- Dated this the 17th day of February, 2011 JUDGMENT Since the questions that arise for determination in both these writ petitions are the same, they are considered and disposed of together by this common judgment. 2. The petitioners in W.P.(C) No.18306 of 2003 are traditional fishermen who eke out their livelihood by catching fish from various places in Thaikkatussery village in Cherthala Taluk, using stake nets. According to the petitioners they are persons who have been operating stake nets for more than 30 years prior to the filing of this writ petition. However, they have not been granted licence for their stake nets. It is the case of the petitioners that they had been submitting applications to the authorities for the grant of licences, but no orders were being passed on such applications. Subsequently, the authorities started refusing to consider the applications submitted by them. Therefore, they submitted Ext.P1 representation requesting for some decision on the question of regularisation of their right to operate stake nets. When no orders were passed on Ext.P1 also, they approached this Court by filing O.P. No. 32133 of 2000. It W.P.(C).Nos.18306 & 31346 of 2003 2 was disposed of by Ext.P2 judgment dated 15.1.2001. Exts.P1 in this writ petition was Ext. P1 in the said original petition also. As per Ext.P2, this Court directed the first respondent to consider and dispose of the said representation in accordance with law after giving an opportunity of being heard to the petitioners also, within a period of two months from the date of receipt of a copy thereof. Accordingly, Exts.P1 was considered and the request of the petitioners was rejected in the following grounds:- “5. Government have examined Ext.P1 representation, taking into account the arguments made by the petitioners at the time of the hearing held on 7.4.2001. Since the petitioners could not produce any evidence to prove that they have been operating the stake nets for the past several years and that they have applied for grant of licences in time, the petitioners are not eligible for the privilege of grant of licences as stipulated in Government Letter No.61373/F2/80/TF&PD dt. 29.12.1993 by which grant of fresh licences to stake nets was dispensed with” On the above basis the petition was rejected. The said order, Ext.P3 is under challenge in this writ petition. 3. According to the counsel for the petitioner, Mr. S.P.Chaly, it is not possible for the poor fishermen to produce documentary evidence to show that they had been operating stake nets for more than 30 years prior to the date of filing the petition. As pointed out by them however, if an enquiry is conducted through the Director of Fisheries, it would be revealed that the petitioners W.P.(C).Nos.18306 & 31346 of 2003 3 were persons who had been operating stake nets for the past 40 years. However, no such enquiry was conducted and their application was rejected mainly on the ground that there was no evidence to prove their occupation. My attention has also been drawn to Ex.P4 judgment of a Division Bench of this Court wherein this Court has taken note of a Government policy that is contained in Government order dated 29.12.1983. In the said Government Order, the Government had decided as a matter of general policy that in all cases where stake nets have been in operation for more than 5 years uninterruptedly the operation of such stake nets will be regularised by issuing valid licences. In all other cases stringent action should be taken by the Department to evict the persons who had put up unauthorised stake nets. Since the period contemplated by the Government order referred to in Ext.P4 is only 5 years prior to 29.12.1983, it is contended that the first respondent seriously erred in rejecting Ext.P1 application of the petitioner by Ext.P3. The counsel has also relied on Ext.P5 Government order dated 7.2.2000 wherein the following has been ordered: “Government have examined the case in detail. Government have been receiving a large number of requests for issuance of new licences/regularisation of unautorised stake nets. As 15 years have elapsed after W.P.(C).Nos.18306 & 31346 of 2003 4 taking a decision not to issue new licences to instal stake nets in backwaters it is time to review the position throughout the state, especially in view of the enactment of the proposed Ïnland Fisheries Bill”. On the basis of the above, the Government appointed a committee to make a detailed survey of the existing licenced/unauthorised stake nets/China nets and the impact of the operation of unauthorised stake nets with a direction to consider the question of giving fresh licences for the unauthorised stake nets. In the light of the above, it is contended that the question as to whether the unauthorised stake nets are to be regularised or not, is still under the active consideration of the Government and, therefore, the rejection of Ext.P1 in the said circumstances was absolutely uncalled for. 4. As per order dated 2.11.2007, this Court had directed the Government to make available the report of the committee appointed as per Ext.P5. However, the Government Pleader on instructions submits that though a report was submitted by the said committee, the report has been rejected by the Government. Be that as it may, it is not disputed that the Government policy that has been taken note of in Ext.P4 still remains unchanged. In view of the above, the order Ext.P3 that has been passed in the present case cannot be sustained. W.P.(C).Nos.18306 & 31346 of 2003 5 5. In the above circumstances, Ext.P3 is set aside. The first respondent is directed to consider Ext.P1 application afresh in the light of the Government policy that has been taken note of by this Court in the judgment evidenced herein by Ext.P4 and to consider the claim of the petitioners on the merits after having an enquiry conducted through the Director of Fisheries regarding their claim of occupation for a long period of time. Such orders shall be passed after giving of an opportunity of being heard to the petitioners also. Until final orders are passed as indcated above the status quo as ordered by this Court in this writ petition shall continue. 6. The prayer in W.P.(C) No.31346 of 2003 is for a direction to ensure that unauthorised stake nets, are not established by other persons. In the counter affidavit, the contention is that though 77 unauthorised stake nets have been removed pursuant to the directions of this Court, such stake nets were reinstalled after such removal. It is also submitted that the removal of stake nets is costly and, therefore, the same could not be undertaken on a routine basis due to lack of funds. 7. It is to be noted that this Court has already directed removal of unauthaorised stake nets as per judgment in O.P.No. W.P.(C).Nos.18306 & 31346 of 2003 6 19455 of 2002 evidenced in this writ petition by Ext.P3 . Therefore, a further direction in the said regard is unnecessary. However, though removal of stake nets, may be costly, it is for the authorities to ensure that new stake nets are not installed unauthorisedly and that the channel is kept free of such unauthorised stake nets and other obstructions. The authorities are duty bound to ensure that unauthorised stake nets are not installed afresh. Therefore, there shall be a direction to the respondents to take all steps necessary to ensure that unauthorised stake nets removed by the authorities are not reinstalled. In the result, (a) W.P(C) No.18306 of 2003 is allowed, the impugned order Ext.P3 is quashed. The 1st respondent is directed to consider Ext.P1 application afresh in the light of the observations made above after giving an opportunity of being heard to the petitioners. The status quo as ordered by this Court shall continue until such orders are passed. (b) W.P.(C) No.31346 of 2003 is disposed of directing the respondents to take all steps that are W.P.(C).Nos.18306 & 31346 of 2003 7 necessary to ensure that the unauthorized stake nets removed are not re-installed. (c) There will be no order as to costs. K.SURENDRA MOHAN, JUDGE. mns