IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 OP.No. 9137 of 2003(K) --------------------------------- PETITIONER(S): ------------------------ 1. KATACHAL SHRIMP FARMERS SOCIETY, ELAMKUNNAPUZHA P.O., REP.BY ITS SECRETARY P.K.ASOKAN, PARAMPADI VEEDU,MALIPPURAM P.O. 2. KURICHIPPADAM SHRIMP FARMERS SOCIETY, ELAMKUNNAPUZHA, MALIPPURAM P.O., REP.BY ITS SECRETARY O.SEBASTIN CRISTOPHER, CHAKKALAKKAL VEEDU, KARTHEDAM, MALIPPURAM P.O. 3. KOCHADAPPU KRISHI SAMAJAM, ELAMKUNNAPUZHA P.O., REP.BY ITS SECRETARY K.P.SHANMUGHAN, KOLLAMPARAMBIL VEEDU, ELAMKUNNAPUZHA P.O. 4. PAZHAYIDAM KRISHI SAMAJAM, NJARACKAL, REP.BY ITS PRESIDENT DR.K.K.SHANMUGHAN, KAVINTEYAKATH, PANAYAPILLY, MATTANCHERRY. 5. MULERIKKAL KUMBALATHADI KRISHI SAMAJAM, NJARACKAL, REP. BY ITS PRESIDENT THANKAPPAN, KAITHAVALAPPIL, NJARACKKAL. 6. KIZHAKKE MANJANAKKAD KRISHI SAMAJAM, THEKKEPALLA, NJARAKKAL, REP.BY ITS PRESIDENT I.K.ANDI, ITTUPARAMBIL, NJARACKAL. 7. KIZHAKKE MANJANAKKAD KRISHI SAMRAKSHANA SAMITHI, NJARACKAL, REP.BY ITS SECRETARY, K.P.JOSEPH KIZHAKKEDAN, NJARACKAL. 8. KIZHAKKE MANJANAKKAD NEDIYODI KRISHI SAMAJAM, NJARACKAL, REP.BY PRESIDENT MAMPILLY ELIAMMA GEORGE, NJARACKAL. 9. KIZHAKKE MANJANAKKAD KRISHI SAMAJAM (CHERIYAPULLAN), NJARACKAL, REP.BY ITS PRESIDENT, MAMPILLY ELIAMMA GEORGE, NJARACKAL. Kss ..2/- ....2..... O.P.NO.9137/2003 K 10. VADAKKEPALLAMPILLY KRISHISAMAJAM, ELAMKUNNAPUZHA P.O., REP.BY ITS SECRETARY, I.M.THOMAS, ITTIKUNNATH, ELAMKUNNAPUZHA P.O. BY ADV. MR.DINESH R.SHENOY RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP.BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE KERALA FISHERMEN'S WELFARE FUND BOARD, REGIONAL OFFICE NO.55 5109, CHURCH LANDING ROAD, PALLIMUKKU, COCHIN-682 016, REP.BY THE REGIONAL EXECUTIVE, KFWF BOARD. R1 BY GOVERNMENT PLEADER MR.MATHEW VADAKKAL R2 BY ADV.MR.ASOK M.CHARIYAN, SC, KFWFB THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.15937/2003 IN O.P.NO.9137/2003 K DISMISSED 25/06/2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF NOTICE NO.PF-557/00-01 DTD. 8/11/2001 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF NOTICE NO.PF(N)37/01-02 DTD. 11/10/2002 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF NOTICE NO.PF(N)35/01-02 DTD. 11/10/2002 ISSUED BY THE 2ND RESPONDENT. P4: COPY OF NOTICE NO.PF(N)56/01-02 DTD. 5/11/2002. P5: COPY OF REVENUE RECOVERY NOTICE ISSUED TO THE 5TH PETITIONER DTD. 21/01/2003. P6: COPY OF ORDER NO.PF 575/0001 DTD. 14/11/2002 ISSUED BY THE 2ND RESPONDENT. P7: COPY OF NOTICE NO.PF(N)51/01-02 DTD. 7/11/2002. P8: COPY OF ORDER NO.PF 580/00-01 DTD. 14/11/2002. P9: COPY OF NOTICE NO.PF-580/00-01 DTD. 19/09/2002. P10: COPY OF NOTICE NO.PF(N)36/01-02 DTD. 11/10/2002 ISSUED BY THE 2ND RESPONDENT. P11: COPY OF OBJECTION DTD. 02/10/2002 SUBMITTED BY THE 7TH PETITIONER. P12: COPY OF OBJECTION DTD. 25/11/2002 SUBMITTED BY THE 7TH PETITIONER. P13: COPY OF OBJECTION DTD. 26/12/2002 SUBMITTED BY THE 7TH PETITIONER. P14: COPY OF THE AGREEMENT DTD. 6/11/2003 EXECUTED IN FAVOUR OF THEKKE PALLAMPILLY KRISHI SAMAJAM. P15: COPY OF THE MINUTES DTD. 17/11/2003 OF VADAKKE PALLAMPILLY KRISHI SAMAJAM. P16: COPY OF AGREEMENT DTD. 16/12/2006 EXECUTED IN FAVOUR OF KATTACHAL KRISHI SAMAJAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V.K.MOHANAN, J. ---------------------------------------- O.P. No.9137 OF 2003 ---------------------------------------- Dated, 25th day of June, 2009 JUDGMENT These ten writ petitioners, claiming that being the society formed for the welfare of its members who are owners of land and Agriculturists engaged in the prawn filtration area, approached this Court praying inter alia for a declaration declaring that the inclusion of prawn filtration areas in Section 4 of the Kerala Fishermen's Welfare Fund Act is ultra vires and beyond the legislative competence of the State Legislature. The second prayer is to issue a writ of certiorari quashing Exts.P1 to P10, which are the notices issued under section 4(5) of the Kerala Fishermen Welfare Fund Act,1985, requiring them to pay contribution towards the above Fund. The 3rd prayer in the writ petition is for the issue a of a writ of mandamus directing the respondents not to apply the provisions of the Act to prawn filtration areas in the Njarakkal; Elamkunnappuzha Panchayats, the Krishi O.P.NO.9137/03 -:2:- Samajams therein or the owners of Pokkali lands in the two Panchayaths. 2. According to the learned counsel for the petitioners, the Samajam is established for the welfare of the agriculturists who are the owners of land used in the prawn filtration. Their case is that they did not engage any fishermen for conducting the prawn filtration. According to them, they have entered into a contract with the fishing contractors and such operations are conducted by them and they are the actual employers engaging the fishermen, if any. Therefore, according to the learned counsel, there is no nexus between the petitioners and the objectives sought to be achieved by the Act. Therefore, the provision of the Act is not applicable in the case of the petitioner. 3. A counter affidavit is seen filed by the 2nd respondent as well as the Ist respondent Government. The sum and substances of the contentions raised by O.P.NO.9137/03 -:3:- respondents 1 and 2 is that the individual owners of the land formed into the Samajam for the purposes of prawn cultivation as it is inconvenient and difficult for them individually to carry out the operation of prawn cultivation. So according to the respondents, the provisions of the above Act are strictly applicable in the present case and the petitioners being the ultimate beneficiaries of the prawn cultivation, they cannot escape from the liability of paying contribution. 4. I have hared the learned counsel for the petitioners as well as the standing Counsel for the 2nd respondent and also the learned Government Pleader for the Ist respondent. 5. Pursuant to Exts.P1 to P10 notices, it is stated that the petitioners have filed individual objections stating that they are not the land owners and therefore, no liability can be fixed under the provision of the above Act, as demanded as per Exts.P1 to P10, which are pertained to the year 2001. Though reply was alleged to O.P.NO.9137/03 -:4:- have been submitted by the petitioners, the subsequent steps taken by the 2nd respondent is not discernible from the counter affidavit filed by the 2nd respondent. In the counter affidavit filed by the respondents 1 and 2 also, the legal contention raised by the petitioners are not properly dealt with and no effective reply is seen to have been stated. On the strength of the decision in Koluthara Exports Ltd., v. State of Kerala (2002(2) SCC 459), it is the definite case of the petitioners that, as the petitioners are not engaging fishermen, there is no nexus and the petitioners have no liability to pay the amount. It is evident from the materials furnished by the petitioners that the contract entered into between them and the contractors involves lakhs of rupees, but not a single paise has been paid either by the petitioners or contractors towards the contribution under the Act or Scheme. There is no materials before this Court at this point of time as to how many fishermen are being engaged by the petitioners or the contractors, O.P.NO.9137/03 -:5:- whether the fishermen engaged by the petitioners, if any, or the contractors are registered fishermen so as to avail the benefit of the scheme. In the absence of those details, and in view of the dispute regarding the status of the petitioners and also regarding the liability of the members of the petitioners' samajam, on the basis of the extent of land in their ownership and possession, especially, in the light of explanation to Section 4(5) of the Act, this court cannot take a final decision on merit in the matter. Under the above facts and circumstances, I am of the view that without entering into the merits or demerits of the contentions raised in this writ petition, the same can be disposed of with a direction to the 2nd respondent to consider the matter afresh and to have a decision with reasoning. 6. In the result, this writ petition is disposed of directing the petitioners to make detailed representation, either individually or collectively, before the 2nd respondent stating all their objections against O.P.NO.9137/03 -:6:- Ext.P1 to P10 notices, within one month from today, and the 2nd respondent is directed to dispose of such representation as expeditiously as possible, at any rate, within three months from the date of receipt of the copy of this judgment which will be produced by the petitioners along with their representation. On such receipt of the representation and copy of the judgment, the 2nd respondent is directed to hear the petitioners or their representatives, after giving them effective opportunity of being heard, including to adduce evidence or materials, if any, to substantiate their contentions and also after collecting evidence, if necessary, in the manner deems fit by him to pass a speaking order. Till such decision is taken , all further proceedings pursuant to Exts.P1 to P10 shall be deferred. If no representation is filed within the stipulated time, 2nd respondent can proceed against such petitioner or its members can and take any coercive step towards the realisation of the amount, if the proceedings is otherwise correct and in O.P.NO.9137/03 -:7:- order. The writ petition is disposed of Accordingly. V.K.MOHANAN, JUDGE kvm/- O.P.NO.9137/03 -:8:- V.K.MOHANAN, J. O.P.No. 9137/2003 JUDGMENT Dated:25.6.2009..