Fishing restrictions imposed under Rule 17(7) of the TN Marine Fishing Regulation Rules are not unlawful or discriminatory- Madras High Court

W.P.No.4322 IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.01.2022CORAM :THE HON BLE MR.MUNISHWAR NATH BHANDARI ACTING CHIEF JUSTICEANDTHE HON BLE MR.JUSTICE P.D.AUDIKESAVALUW.P.No.4322PoomPuhar Traditional Fishermen Welfare Associationhaving its Registered Office at1437 North Street Poombukar Kaveripattinam Kizhaiyur Sirkzhi Taluk Nagapattinam District Tamil Nadu Pin 609 105rep. by the Secretary of the SocietyJambulingam Kabadikunju....Petitioner Vs1.The State of Tamil Nadu Through its Chief Secretary Fort St. George Govt. Secretariat Chennai Tamil Nadu.2.The Principal Secretary Animal Husbandry Dairying & Fisheries Department Fort St. George Govt. Secretariat Chennai Tamil Nadu.____________https: www.mhc.tn.gov.in judis W.P.No.43223. The Union of India Through the Principal Secretary Office of the Hon ble Prime Minister of India South Block New Delhi 110 001.4.The Secretary Ministry of Law Government of India Shastri Bhavan Dr.Rajendra Prasad Road New Delhi 110 001.5.The Principal Secretary Ministry of Agriculture Krishi Bhawan Dr.Rajendra Prasad Road New Delhi 110 001....RespondentsPrayer: Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondents 1 and 2 to allow the traditional fisherman of Tamil Nadu to carry the purse seine net in their country crafts and mechanized vessels for Marine Fishing within the traditional waters and of Tamil Nadu and behind the traditional waters within the exclusive economic zones by lifting the prohibitions and banning of carry the purse seine net in the country crafts and the mechanized vessels for marine fishing in the sub rule 7 of rule 17 of the Tamil Nadu Marine Fishing Regulation Rules 1983 vide G.O.Ms.No.36 Animal Husbandry and Dairying and Fisherieson 17.02.2020.For the Petitioner:Mr.J.Sushil Rajkumar For the Respondents:Mr.P.MuthukumarState Government Pleaderfor respondent Nos.1 and 2____________https: www.mhc.tn.gov.in judis W.P.No.4322ORDER(Order of the Court was made by the Hon ble Acting Chief Justice)By this writ petition the petitioner seeks a direction on respondents 1 and 2 to allow traditional fishermen of Tamil Nadu to carry the purse seine net in their country crafts and the mechanized vessels for marine fishing within the traditional waters and of Tamil Nadu and behind the traditional waters within the exclusive economic zones by lifting such prohibition ban stipulated in Rule 17(7) of the Tamil Nadu Marine Fishing Regulation Rules 1983incorporated vide G.O.Ms.No.36 Animal Husbandry Dairying and Fisheriesdated 17.02.2020.2. For ready reference Rule 17(7) of the 1983 Rules is quoted hereunder: “17. Regulation on use of gear....(2) ...(3) ...(4) ...(5) ...____________https: www.mhc.tn.gov.in judis W.P.No.4322(6) ...(7) No owner or master of any fishing vessel shall carry on fishing by pair trawling or fishing with purse seine net using any fishing vessel or craft whether country craft or mechanized boat irrespective of their size and power of the engine in the entire coastal area of the State.”3. Learned counsel for the petitioner submits that all neighbouring States are permitting fishing without any prohibition or restriction as imposed by the State of Tamil Nadu. In view of the above and in the absence of similar set of legislation in other States a discrimination has been made and accordingly a direction is sought to allow the traditional fishermen of Tamil Nadu to carry the purse seine net in their country crafts and the mechanized vessels for marine fishing within the traditional waters and of Tamil Nadu by lifting the prohibitions as stated in Rule 17(7) of the 1983 Rules.4. Learned counsel for the petitioner has made a specific reference to the regulations in existence in the State of Kerala where no restrictions as imposed by the State of Tamil Nadu exist. ____________https: www.mhc.tn.gov.in judis W.P.No.43225. Learned Government Pleader has contested the writ petition and submits that the prohibition imposed in Rule 17(7) of the 1983 Rules is not unconstitutional rather similar prohibition is in existence in other States. In reference to the State of Kerala learned Government Pleader submits that similar prohibition exists and even a challenge to it before the Apex Court did not sustain. He further submits that the object sought to be achieved by issuance of the Government Order is in consonance with the scheme of the Animal Husbandry Dairying and Fisheries Department. Earlier a Government Order dated 25.03.2000 was issued prohibiting fishing by pair trawling or fishing with purse seine nets by any fishing vessels craft whether country craft or mechanical boat irrespective of the size or power of the engine in the entire coast of Tamil Nadu in territorial waters. The prohibition as referred to under Rule 17(7) of the 1983 Rules is in operation since 25.03.2000. The only difference is earlier it was by way of a government order whereas now it is in the form of a Rule. The challenge to Rule 17(7) of the 1983 Rules has been made ignoring the aforesaid and without giving any justification as to why the Government Order dated 25.03.2000 was not challenged by the ____________https: www.mhc.tn.gov.in judis W.P.No.4322petitioner for years together when the same prohibition was imposed and existing.6. Learned Government Pleader further submits that a writ petition being W.P.No.171718was filed to seek enforcement of G.O.Ms. No.40 Animal Husbandry and FisheriesDepartment dated 25.03.2000 and the said writ petition was disposed of by the order dated 04.09.2018 after issuing directions for enforcement of the Government Order. 7. Learned Government Pleader has cited the judgment of the Apex Court in the case of State of Kerala v. Joseph Antony reported in1 SCC 301 to support his arguments. The challenge to the similar prohibition was not accepted by the Apex Court even in reference to Article 19(1)(g) of the Constitution of India. The judgment in the case of the State of Keralacovers the issue. There the fishing vessels were not allowed to operate within 10 kilometres till reconsideration of the issue. The fishing by mechanized ____________https: www.mhc.tn.gov.in judis W.P.No.4322vessels in territorial waters by use of purse seine ring seine pelagic trawl and mid water trawl in territorial waters was prohibited. Highlighting the judgment in the case of State of Keralaa prayer is made by learned Government Pleader to dismiss the writ petition.8. We have considered the rival submissions and perused the materials on records.9. Rule 17(7) of the 1983 Rules was incorporated by Government Order dated 17.2.2020. But the prohibition was in operation from 25.03.2000 namely for more than 20 years. In view of the above the respondent State has not introduced a new prohibition but only incorporated it in the form of a rule. It was otherwise for the object sought to be achieved and as narrated in the judgment in the case of S.HarikrishnanDepartment dated 25.03.2000 prohibiting fishing by ____________https: www.mhc.tn.gov.in judis W.P.No.4322pair trawling or fishing with Purse Seine nets by any fishing vessels craft whether country craft or mechanical boat irrespective of the size or power of the engine in the entire coast of Tamil Nadu in territorial waters as a measure to conserve the area of fishing. Provision of the Tamil Nadu Marine Fishing Regulation Act 1983 empowers the Government to regulate restrict or prohibit certain matters and in the present case according to the petitioner Section 5(c) andof the said Act would apply.5. It is the further case of the petitioner that in boats where 50 to 60 persons are engaged they threatened and bet fishermen in small boats and in some cases they were thrown out of their boats catamarans and thus harassed them. It is also the submission of the writ petitioner that those who use bigger boats also use modern equipments to trace fishes and make full catch without any provision for small fishermen. Though on several occasions several complaints were made the authorities have turned deaf ears and not taken any action.”The reason for imposition of prohibitions has been given in the paragraphs quoted above. It is not only to save small fishermen but also to avert death of dolphins and tortoises etc. and to promote ____________https: www.mhc.tn.gov.in judis W.P.No.4322breeding of small fish.10. In such view of the matter we do not find any violation of the constitutional provision rather an identical issue as raised by the petitioner was brought before the Apex Court in the case of State of Keralawherein a challenge to the similar restriction or prohibition was not accepted even in reference to Article 19(1)(g) of the Constitution of India. The relevant paragraph of the said judgment is quoted for ready reference:“28. By monopolising the pelagic fish stock within and by indiscriminate fishing in the territorial waters they are today denying the vast masses of the poor fishermen their right to live in two different ways. The catch that should come to their share is cordoned off by the giant closely meshed gears leaving negligible quantity for them. Secondly the closely meshed nets kill indiscriminately the juvenile with the adult fish and their eggs as well. That is preventing breeding of the fish which is bound in course of time to lead to depletion and extinction of the fish stock. There is thus an imminent threat to the source of livelihood of the vast section of the society. The State is enjoined ____________https: www.mhc.tn.gov.in judis W.P.No.4322under Article 46 of the Constitution in particular to protect the poor fisherman population. As against this the respondent operators are not prohibited from fishing within the territorial waters. They are only prohibited from using certain types of nets viz. purse seines ring seines pelagic and mid water trawls. There is therefore no restriction on their fundamental right under Article 19(1)(g) to carry on their occupation trade or business. They cannot insist on carrying on their occupation in a manner which is demonstrably harmful to others and in this case threatens others with deprivation of their source of livelihood. Since in the circumstances the protection of the interests of the weaker sections of the society is warranted as enjoined upon by Article 46 of the Constitution and the protection is also in the interest of the general public the restriction imposed by the impugned notifications on the use of the gears in question is a reasonable restriction within the meaning of Article 19(6) of the Constitution.”[emphasis supplied]11. In view of the judgment of the Apex Court in the case of ____________https: www.mhc.tn.gov.in judis W.P.No.4322State of Keralaon the same issue which is binding even if the other neighbouring States have not imposed similar restrictions we do not propose to interfere with the prohibition ban imposed in the State for the object sought to be achieved. From the judgment of the Apex Court in the case of State of Keralait becomes clear that a similar prohibition exists in the State of Kerala. Thus the statement of learned counsel for the petitioner that there was no similar restriction or prohibition in the State of Kerala cannot be accepted.12. In fact in the case of S.Harikrishnanthis court in reference to the Government Order dated 25.03.2000 imposing prohibition of the similar nature or of the same nature as now under challenge issued direction for effective implementation of the Government Order dated 25.03.2000. A challenge made to the Government Order dated 25.03.2000 was dismissed by a Division Bench of this court vide judgment dated 05.02.2019 in W.P.No.31319of the 1983 Rules has been enacted in tune with the ____________https: www.mhc.tn.gov.in judis W.P.No.4322judgment in the case of S.Harikrishnanof the 1983 Rules does not offend any of the constitutional provisions and each State is empowered to prescribe its own policy for fishing.13. For the foregoing reasons we find no illegality or unconstitutionality in Rule 17(7) of the 1983 Rules which imposes prohibition ban on using certain varieties of nets. Accordingly the writ petition fails and it is dismissed. No costs. Consequently W.M.P.No.4822 is closed.(P.D.A. J.) 19.01.2022 Index : Yes Nobbr____________https: www.mhc.tn.gov.in judis W.P.No.4322To:1.The Chief Secretary State of Tamil Nadu Fort St. George Govt. Secretariat Chennai Tamil Nadu.2.The Principal Secretary Animal Husbandry Dairying & Fisheries Department Fort St. George Govt. Secretariat Chennai Tamil Nadu.3. The Principal Secretary Union of India Office of the Hon ble Prime Minister of India South Block New Delhi 110 001.4.The Secretary Ministry of Law Government of India Shastri Bhavan Dr.Rajendra Prasad Road New Delhi 110 001.5.The Principal Secretary Ministry of Agriculture Krishi Bhawan Dr.Rajendra Prasad Road New Delhi 110 001.____________https: www.mhc.tn.gov.in judis W.P.No.4322M.N.BHANDARI ACJAND P.D.AUDIKESAVALU J.bbr W.P.No.4322 19.01.2022____________

Summary: In such view of the matter, we do not find any violation of the constitutional provision, rather an identical issue, as raised by the petitioner was brought before the Apex Court in the case of State of Kerala (supra), wherein a challenge to the similar restriction or prohibition was not accepted even in reference to Article 19(1)(g) of the Constitution of India. These were discussed by the bench of Hon’ble Mr. Munishwar Nath Bhandari &amp; Hon’ble Mr. Justice P. D. Audikesavalu in the case of PoomPuhar Traditional Fishermen Welfare Association V. The State of Tamil Nadu &amp; Anr (W.P.No.430 of 2022). The crux of the case is the petitioner seeks a direction on respondents 1 and 2 to allow traditional fishermen of Tamil Nadu to carry the purse seine net in their country crafts and the mechanized vessels for marine fishing within the traditional waters and of Tamil Nadu and behind the traditional waters within the exclusive economic zones by lifting such prohibition/ban stipulated in Rule 17(7) of the Tamil Nadu Marine Fishing Regulation Rules, 1983 incorporated vide G.O.Ms.No.36, Animal Husbandry, Dairying and Fisheries (FS-4), dated 17.02.2020. Learned counsel for the petitioner submits that all neighbouring States are permitting fishing without any prohibition or restriction as imposed by the State of Tamil Nadu. In view of the above and in the absence of similar set of legislation in other States, a discrimination has been made and, accordingly, a direction is sought to allow the traditional fishermen of Tamil Nadu to carry the purse seine net in their country crafts and the mechanized vessels for marine fishing within the traditional waters and of Tamil Nadu by lifting the prohibitions as stated in Rule 17(7) of the 1983 Rules. Learned Government Pleader has cited the judgment of the Apex Court in the case of State of Kerala v. Joseph Antony, ((1994) 1 SCC 301) to support his arguments. The challenge to the similar prohibition was not accepted by the Apex Court even in reference to Article 19(1)(g) of the Constitution of India. The bench of Hon’ble Mr. Munishwar Nath Bhandari &amp; Hon’ble Mr. Justice P. D. Audikesavalu observed and stated while referring to the case of State of Kerala v. Joseph Antony, (1994) 1 SCC 301 that in view of the judgment of the Apex Court in the case of State of Kerala (supra) on the same issue, which is binding, even if the other neighbouring States have not imposed similar restrictions, we do not propose to interfere with the prohibition/ban imposed in the State for the object sought to be achieved. From the judgment of the Apex Court in the case of State of Kerala (supra), it becomes clear that a similar prohibition exists in the State of Kerala. Thus, the statement of learned counsel for the petitioner that there was no similar restriction or prohibition in the State of Kerala cannot be accepted. For the foregoing reasons, we find no illegality or unconstitutionality in Rule 17(7) of the 1983 Rules which imposes prohibition/ban on using certain varieties of nets. Accordingly, the writ petition fails and it is dismissed. No costs. Consequently, W.M.P.No.487 of 2022 is closed.