Paripoornan, J.:— The petitioners in O.P No. 7287 of 1991 and O.P No. 7289 of 1991 are the appellants in the above two writ appeals. The said two original petitions and O.P No. 7294 of 1991 were heard and disposed of together by a common judgment dated 30-7-1991, by a learned single Judge of this Court. The respondent-State has filed a common counter-affidavit in the three cases. It is filed in O.P No. 7294 of 1991. No writ appeal is filed from O.P No. 7294 of 1991.
2. The original petitions were filed attacking Government Notification dated 12-7-1991 — G.O (P) No. 31/91.F & PD dated 12-7-1991 — Ext. P1 in O.P No. 7287 of 1991 and Ext. P10 in O.P No. 7289 of 1991. The petitioners prayed for the grant of a declaration: (a) that they are entitled to conduct trawling operations in the sea outside 12 nautical miles from the base line; (b) to issue a writ of mandamus to the respondents to forbear from restricting the movement of fishing vessels belonging to the petitioners or their members from the jetty in the State to the sea outside the territorial waters and back from the sea to the jetty, and for the issue of other appropriate directions. The petitioners are engaged in fishing operations using fishing boats of different types and having different engine capacities. The boats are fitted with 68 H.P Engine and 31.5 feet length. The fishing boats are licensed under the Kerala Marine Fishing Regulation Act, 1980. The Government issued Ext. P1 order in exercise of the statutory powers conferred on them under Section 4(1)(d) of the Kerala Marine Fishing Regulation Act, 1980 read with Rule 4 of the Kerala Marine Fishing Regulation Rules, 1980. Thereby the Government of Kerala temporarily prohibited use of bottom trawl in the sea along the entire coast line of the State, not beyond the territorial waters specified in G.O (P) No. 136/84.PW/F & PD dated 30-11-1984 with effect from 15-7-1991 to 16-8-1991. The prohibition is for a temporary period of one month.
3. The three original petitions were filed by owners and operators of mechanised boats engaged in fishing in the deep sea. They pray for the grant of a declaration enabling them to conduct trawling operations in the sea outside twelve nautical miles from the base line. It is in that connection the grant of the writs, mentioned above, are prayed for.
4. The gravamen of the charge voiced by the petitioners before the learned single Judge and before us, in writ appeals, is that the petitioners/appellants are not being allowed to take their boats through territorial waters and such a prohibition is violative of their fundamental rights guaranteed under Article 19(1)(g) of the Constitution to carry on any occupation, trade or business.
5. The trawling operations during monsoon season were engaging the attention of the State Government for the past several years. At least, three High Power Commissions were appointed — Dr. Babu Paul Commission in 1981, Dr. A.G Kalwar Commission in 1984 and Dr. Balakrishnan Nair Commission in 1988. Dr. Babu Paul and Dr. A.G Kalwar submitted final reports. But, Dr. Balakrishnan Nair has filed only a preliminary report on 26-6-1989 recommending introduction of ban on trawling during monsoon season, as a temporary measure. He said that he could give a final verdict only after a full study for three years. It is common ground that the said period of three years will be over by middle of August, 1991. The final report of Dr. Balakrishnan Nair is awaited. The preamble to Ext. P1 states that in order to protect the interest of different sections of persons engaged in fishing, particularly those engaged in fishing using traditional fishing crafts, and to maintain law and order in the sea and the need to conserve fish wealth and to regulate fishing, the Government felt that prohibition of the use of bottom trawl in the sea along the entire coastline of the State, not beyond the territorial waters with effect from 15-7-1991 to 16-8-1991 is essential.
6. The learned single Judge adverted to the above policy and purpose discernible from Ext. P1 notification and highlighted the following aspects in coming to the conclusion that Ext. P1 is valid and that there is no justification to grant the declaration prayed for by the petitioners. The learned single Judge opined: (1) the ban is imposed only as a temporary measure from 15-7-1991 to 16-8-1991, just for one month; (2) under the guise of fishing in deep waters outside the territorial belt, the mechanised boats employed by the petitioners are sure of fish in territorial waters also using trawls and the practical experience, in the past years, of the State pointed out that such clandestine activity in the open wide sea cannot be effectively controlled and it is likely to create serious law and order problem; (3) Traditional fishermen, who earn their livelihood by fishing alone, may be put to starvation resulting in the nation suffering by dearth of sea food. If trawling is permitted in territorial waters during monsoon season, it will affect future sea wealth, resulting in serious consequences; and (4) The in-depth study undertaken by Dr. Balakrishnan Nair, who has submitted a preliminary report on 26-6-1989 recommending introduction of ban on trawling during monsoon season as a temporary measure, is likely to be over and the final report is awaited in August, 1991. In such circumstances, the temporary ban imposed as a policy decision cannot be said to be unfair, arbitrary or mala fide.
7. The learned single Judge after adverting to the nature of the trawling operation during monsoon season, the reports of the experts and also the nature of trawl fishing, highlighting the various points stated in the preceding paragraphs, held that Ext. P1 order has imposed only a reasonable restriction in the interest of the general public and so it is protected by Article 19(5) of the Constitution of India. In the light of the peculiar aspects highlighted as above and in view of the imponderables, the learned single Judge felt that Ext. P1 is only a policy decision promulgated as a practical solution, in the interest of all concerned, and that such a temporary ban cannot be said to be arbitrary, unconstitutional or mala fide. In coming to the said decision, the learned single Judge referred to the relevant decisions of the Supreme Court and held that such a policy decision arrived at by the Government in the larger interest of the general public cannot be subject to minute or microscopic scrutiny in exercise of the discretionary jurisdiction vested in this Court under Article 226 of the Constitution of India and declined jurisdiction.
8. Before us, senior counsel for the appellants Mr. M.I Joseph argued that Ext. P1 notification is beyond the permissible limits and the difficulty of overseeing, as to whether trawling is being conducted within the territorial waters and the imponderables involved in the exercise, cannot be a reason to impose a total ban from conducting trawl fishing outside the territorial waters. We are of the view that since the fetter or restriction imposed being temporary, largely influenced by considerations of policy, and compelled by the circumstance that an effective overseeing of the operations in the sea is impossible, Ext. P1 is not open to any objection. The petitioners are not entitled to the grant of the declarations sought in the original petitions. We should add that if the declaration, as prayed for, is granted permitting the petitioners to trawl in the sea outside twelve nautical miles from the baseline and during the course of movement in the sea to reach the territorial waters, the mechanised boats avail the opportunity to fish in territorial waters also using trawls, resulting in disaster to future sea wealth, besides affecting the traditional fishermen and also leading to a law and order problem, the resultant situation will be chaos. It is a matter of common knowledge that effective overseeing of the fishing operations in the wide open sea is a task next to impossibility. These aspects should deter this Court from exercising the discretionary jurisdiction vested in it under Article 226 of the Constitution of India.
9. In the above perspective, we concur with the reasoning and conclusion of the learned single Judge and hold that the judgment under appeal does not merit any interference. The writ appeals are dismissed.
Dated this the 14th day of August, 1991.
Appeals dismissed.
Comments