IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5307 of 2001 with SPECIAL CIVIL APPLICATION No 5274 of 2001, 5275 of 2001 and 5276 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------- GANPATBHAI N RATHOD Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5307 of 2001 MR. MUKESH D RAVAL for petitioner No. 1 MRS. (DR.) SONIA HURA WITH MR. MR RE VARIAVA for Respondent No. 1 MS. KATHA GAJJAR, AGP, for Respondent No. 1,2-6 2. Spl. C.A. No. 5274/2001 MR. Y.S. LAKHANI WITH MS. YAMINI J. DESAI for petitioner MS. KATHA GAJJAR, AGP, for the respondents. 3. Spl. C.A. No. 5275/2001 MR. Y.S. LAKHANI WITH MR. AMAR D. MITHANI for petitioner. MS. KATHA GAJJAR, AGP, for the respondents. 4. Spl. C.A. No. 5276/ 2001 MR. Y.S. LAKHANI WITH MR. ASHISH M. DAGLI for petitioner. MS. KATHA GAJJAR, AGP, for the respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 14 /8/2001 C.A.V. JUDGEMENT 1. Ganpatbhai N. Rathod-petitioner has filed this petition praying for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 27th June, 2001. The petitioner had challenged the said order passed by the Additional District Magistrate, Bharuch which has been passed under Section 144 of the Criminal Procedure Code (hereinafter referred to as `the Code'). The District Magistrate has imposed certain conditions for carrying out fishing activity by putting up of wooden pole with nets on the bank of the Narmada River for two months, in certain circumstances on the ground of public safety. This petition has been filed by the petitioner along with other Tribals (hereinafter referred to as the petitioners). Along with this petition, there are other Special Civil Applications namely, Spl. C.A.. No. 5274/2001 filed by Ashapuri Fishing Udyog Seva Sahkari Mandali, 5275/2001 filed by the Reva Fishermen Co-op. Society and , 5276/2001 filed by Ganpatbhai Raisangbhai Gohel before this court. All these petitions raise identical question of law and facts and therefore, I have heard all these matters together. 2. However, some of the fishermen filed caveat and affidavit in Special Civil Application No. 5307 of 2001. The learned advocate for the petitioner as well as learned A.G.P. along with other learned counsel for the respondents had requested me to take up the said matter. Therefore, I have taken up facts of the said matter. 3. It may also be stated earlier for the interim order I had heard Special Civil Application No. 5275 of 2001 and by the order dated 30.7.2001, this court admitted the matters and also granted interim relief staying the effect of the Notification. 4. Being aggrieved and dissatisfied with the said order Bhadbhut Matsya Udyog Co-op. Society and Anr. filed Letters Patent Appeal being L.P.A. No. 730 of 2001 which was heard by a Division Bench (Coram: Hon'ble Mr. D.M. Dharmadhikari, C.J. and K.R. Vyas, J) and the Division Bench by its order dated 1.8.2001 did not interfere with the said order but directed to take up the petition for final hearing at the earliest possible date. Therefore, I have heard the matter for final disposal. 5. The facts giving rise to this petition are as under: 5.1 It has been stated in the petition that the petitioner is Ex-Sarpanch of Jolva Village, Taluka Vagra, District Bharuch. The petitioners are staying in the villages which are situated on the bank of the Narmada River. In other petitions there are some Co-operative Societies which are carrying on fishing activities (hereinafter referred to as `the petitioners'). They are mainly engaged in the fishing activities in the Narmada River. 5.2 It is stated in the petition that the petitioners are carrying on fishing activities by setting up wooden poles on the bank of the Narmada River and in the small islands created due to flow of the Narmada River. It has been stated that one net is attached and at the time of high-tide, in the Narmada River whatever fish is trapped in the nets, the petitioners carry on the activity of fishing from the morning till evening and earning their livelihood by selling them. This technique of fishing is an economic way and it does not require advance device i.e. mechanical boats and other big devices. 5.3 It has been stated in the petition that the Addl. District Magistrate, Bharuch, has issued a Notification dated 28.6.2001 under Section 144 of the Code. By the said Notification the Additional District Magistrate directed that right from Jolva along with other talukas nobody should carry on activity of fishing by putting up wooden poles with nets for two months. While issuing the said Notification the District Collector has considered the representation dated 31.5.2001 submitted by certain fishermen pointing out the difficulties of fishing activity by putting up wooden poles. He has also considered the report of the Director of Fisheries who has also given report dated 12.6.2001 and also recommended that the persons who are carrying on fishing activities by putting up of wooden poles, there is a danger of public safety and also for human-being if their boats are going in the Narmada River which may involve in the nets which are fixed with wooden poles. 6. Before I examine the contentions of petitioners in the present petition, I have been informed that similar Notifications were issued in the year 1999 as well as in the year 2000 during monsoon season. In the year 1999 as well as in the year 2000 similar writ petitions were filed before this court and originally this court issued rule and granted interim relief but when ultimately on the ground of alternative remedy the same were disposed of as withdrawn. So there is no final adjudication about the legality and validity of the Notification in this behalf. It has been submitted that this problem occurs only during monsoon season when there is more water in the river of Narmada river and also more water flow due to tide. There are lot of fishes coming in the river of Narmada and therefore this problem is peculiar to only monsoon season. 7. It has been stated in the petition that in the current season particular fish (Hilsa) arrived in the season and on account of putting wooden poles, it will affect the fishing activity to catch Hilsa fish and accordingly, the Notification came to be issued. 8.1 The petitioner has challenged this Notification on the ground that the same is being illegal, in violation of the fundamental rights enshrined under the Constitution of India and also in gross violation of Article 19(1)(g) of the Constitution whereby the right of the petitioner to carry on business without any obstacle is affected. 8.2 It has been stated in the petition that the petitioners along with other fishermen (i.e. society of fishermen) of Bharuch District are carrying on fishing activity. It has been stated in the petition that this Notification appears to have been issued with a purpose to help big fishermen and because of some political reason. It is stated that the effect of this Notification is stated to be only for a period of two months from the date of its publication. It has also been stated that this Notification has been issued with a view to see that the members of the petitioner society could not carry on their business particularly in these two months of monsoon season with the help of wooden poles and nets. It is also mentioned that the members of the petitioner society being small fishermen have to earn their livelihood by carrying on fishing activity in these two months only. 8.3 It has also been further stated that if the members of petitioner society are not permitted to insert wooden poles, the big fishermen carry on fishing activity with the help of mechanical boats can go even in the middle of the river and catch fish whereas the members of the petitioner society being small fishermen, they do not have mechanical boat and they cannot go in the middle of the river and catch fish. The said action of the respondent authority is in clear violation of Article 19(1)(g) of the Constitution of India. 8.4 It has also been stated in the petition that number of people had made grievance against the said Notification and they have given their representation to the Collector, Bharuch on 31.5.2001. The said representation is given with the signatures of so many persons. However, the authority has not even taken care to reply to the representation made by the members of the petitioner society before issuing the said Notification. 8.5 The learned counsel for the petitioner, has also referred to the provisions of Section 144 of the Cr.P.C. which read as follows:- "Sec. 144(1) In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety or a disturbance of the public tranquility, or a riot, or an affray. (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. (4) No order under this section shall remain in force for more than two months from the making thereof. Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this Section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said Notification. (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor in office. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). (7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing." 8.6 He has also relied on the decision of the Hon'ble Supreme Court in the case of GULAM ABBAS VS. STATE OF U.P. reported in AIR 1981 SC 2198 in which on page 2225 at para 26, it is inter alia observed as under:- "The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquility. Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to override temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail. It is further well settled that the section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlements to rights have already been adjudicated and have become the subject matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then in the exercise of his power under Section 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquility the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights, if there be such and lawful exercise thereof rather than in suppressing them. In other words, the Magistrate's action should be directed against the wrong doer rather than the wronged. Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a large section more vociferous and militant." 8.7 The learned counsel for the petitioner has relied on the decision of the Hon'ble Apex Court in the case of ACHARYA JAGDISHWARANAND AVADHUTA VS. COMMISSIONER OF POLICE, CALCUTTA reported in 1983 CRI. L.J. 1872. In that case A.J. Avadhuta etc.-petitioners were carrying on some religious activity and carrying out procession in public street and meeting to be held in public places by Anand Margis. In that context the State of West Bengal had repeatedly issued Notification under Section 144 of the Code from time to time. This action of the Government was challenged before the court and in this case the Apex Court in para 14 on page 1879 after examining certain decisions of several courts, has observed as under:- "The proviso to sub-section (4) of Section 144 which gives the State Government jurisdiction to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Magistrate is clearly indicative of the position that Parliament never intended the life of an order under Section 144 of the Code to remain in force beyond two months when made by a Magistrate. The scheme of that section does not contemplate repetitive orders and in case the situation so warrants, steps have to be taken under other provisions of the law such as Section 107 or Section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are provisions to be found in the Police Act. If repetitive orders are made it would clearly amount to abuse of the power conferred by Section 144 of the Code." 8.8 He has also relied on judgement of the Calcutta High Court in the case of PORT COMMRS., CALCUTTA VS. JOGENDRA reported in AIR 1933 CALCUTTA 348 in which on page 350 the court has observed as under: "Now there can be no doubt or dispute that the legislature by S. 144 of the Code has conferred very large powers upon Magistrates who have to deal with urgent cases of nuisance or apprehended danger. That section enables a Magistrate to make temporary orders, irrespective of the rights of the parties concerned." Again on page 351 the court has further observed as follows: "Courts, civil as well as criminal, exist for the protection of rights and therefore the authority of a Magistrate should ordinarily be exercised in defence of rights rather than in their suppression; when an order in suppression of lawful rights have to be made it ought not to be made unless the Magistrate considers that other action that he is competent to take is not likely to be effective; and the order, if made, should never be disproportionate to but should always be, as far as possible, commensurate with the exigencies of any particular situation." 8.9 The learned counsel for the petitioner has further relief on the judgement of the Punjab and Haryana High Court in the case of MUNICIPAL COMMITTEE, DHANAULA VS. DISTRICT MAGISTRATE, SANGRUR reported in AIR 1968 PUNJAB AND HARYANA 303 and also another judgement of the Madras High Court in the case of M. KOKKARAJ AND ORS. VS. THE EXECUTIVE MAGISTRATE AND ANR. reported in 1991(1) Crimes 143. He has also relief on the judgement of the Andhra Pradesh High Court in the case of BIJINIBEMULA LINGA MURTHY REDDY AND ORS. VS. BINJI HUSSAIN SAHEB AND ANR. reported in 1979 Cri. L.J. 1147 and also the decision in the case of PARBHAS KUMAR ROY VS. THE OFFICER-IN-CHARGE OF RANINAGAR POLICE STATION AND OTHERS reported in 1985 Cr.L.J. 957. The court in that case was concerned regarding the dispute with regard to fishing in public tanks. There was a dispute between two groups of people for carrying on business. In that context, the District Magistrate has issued a Notification under Section 144 of the Code prohibiting the fishing operation in Meenakshipuram, Kanmoi and also all processions, meetings etc. within the limits of the village for a period of 30 days. In that context the said Notification was challenged and after relying on the said decision of Andhra Pradesh High Court in the case of BIJINIBEMULA LINGA MURTHY REDDY AND ORS. (supra) the court held that the order under Section 144 of the Code prohibiting fishing operation and all operations were not properly exercised. The court relied on those decisions and ultimately allowed the petition and stayed the said Notification. The Court also relied on the decision in the case of PARBHAS KUMAR ROY VS. THE OFFICER IN CHARGE OF RANINAGAR POLICE STATION AND OTHERS (supra). 8.10 He has submitted that the aforesaid Notification has been issued contrary to and inconsistent with the said principle and therefore the same is liable to be set aside. 8.11 He submitted that as the petitioners who are carrying of the activity of fishing are deprived of carrying on their activity of fishing, their rights under Article 21 of the Constitution are violated and their rights to livelihood contained under Article 21 of the Constitution are also violated. 8.12. The learned counsel for the petitioner has submitted that the Notification has been issued for collateral purpose or improper object. He submitted that this Notification has been issued at the instigation of other group of fishermen who have made submissions that fishing activity with wooden poles with net should not be carried. 9. Mr. Y.S. Lakhani, learned counsel for the petitioner has also filed additional affidavit dated 8.8.2001. He has stated that small fishermen are carrying fishing activity since last number of years by inserting pole during the rainy reason. The approximate distance between Kaladra to Luwara is 7 kms. from one bank to other bank and small fishermen are carrying on fishing activity only in one kilometer area since the remaining 5 kilometers area is covered by deep water from the said area fishermen who are having boats are doing fishing activity. He has also filed along with this affidavit, affidavits of various fishermen in which it has been stated that small fishermen are carrying on fishing with wooden poles in area of 1 km. 10. He has also relied on Commentary of Criminal Procedure Code particularly the author N. Iyer, para 1000 wherein the learned author has analysed Section 144 of the Cr.P.C. The learned author has stated the principle as to when the State Government can interfere with the order which is held proper. He submitted that order under Section 144 of the Code is made only in urgent cases of nuisance or apprehended danger. He submitted that the order should mention the material facts. He has also relied on the commentary on duty of the Magistrate. He has further submitted that the order has been proceeded by enquiry and the Magistrate must check the evidence on record. SUBMISSIONS ON BEHALF OF THE RESPONDENT: 11. On behalf of the respondent Ms. Katha Gajjar, learned A.G.P. appeared. She has stated that in the Notification there is a reference of representation (on page 48) dated 31.5.2001 by certain people which representation is also annexed with the affidavit in which they have pointed out their difficulties to the Collector that if the persons are allowed to carry on the activity of fishing by putting up wooden poles along with nets, the same will endanger to the human-life of other fishermen and there is a question of public safety. They have requested to issue necessary Notification prohibiting this type of activity. She has further invited my attention to the report of the Director of Fisheries who has visited the place on 12.2.2001. The Director of Fisheries has also stated that there are about 500 wooden poles. If the persons are allowed to carry on fishing activity with the help of wooden poles along with nets particularly at the time of high tide and if these wooden poles are not easily visible particularly at night time then they may hurdle the life of human being particularly other small fishermen who are carrying of activity of fishing with small boat. She has stated that if fishing activity with traditional way i.e. with small nets and boats is carried on, it will help all fishermen and it will not endanger to the life of people. She also stated that this activity is also contrary to the breeding of Hilsa fish. A copy of the said report is placed on page 33 of the petition. She submitted that the District Magistrate, therefore, considered the representation as well as the report of the Director, Fisheries. He has also considered the report of police, Sub-Divisional Magistrate which has been produced here. Learned A.G.P. has also stated that there are some complaints filed in this behalf for violation of Section 431 of the I.P.C. which provides mischief to public road, bridge, river or channel. 12.1 She has further relied on the affidavit of Shri A.U. Buch, Dy. Director on behalf of Commissioner of Fisheries. It was further stated that the petitioner erect poles across the river and by tying the nets they create a barrier in the course of upward migration of Hilsa fish.