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M.G. Santhanaraj v. Secretary, Government Of Tamil Nadu And Others
Court Opinion Summary
Factual and Procedural Background
The matter is a writ petition filed under Article 226 of the Constitution of India seeking issuance of a writ of certiorari and mandamus to call for the records of and quash Government Order G.O.Ms. No. 40, Animal Husbandry and Fisheries (FS.V) Department, dated 25.03.2000. The impugned notification, issued under clause (a) of Sub‑section (1) of Section 5 of the Tamil Nadu Marine Fishing Regulation Act, 1983, prohibited fishing by pair trawling or fishing with purse‑seine nets by any fishing vessel/craft in the entire coast of Tamil Nadu in territorial waters with effect from 25.03.2000.
The petitioner is a fisherman and President of Rasapet Village Administration. He alleges that the notification affects the livelihood of many fishermen, describing approximate numbers dependent on large and small vessels and the number of nets per boat; he contends that banning purse‑seine nets will adversely affect catch and lacks rationale, and requests that the notification be quashed and that the respondent be directed to issue notifications only after holding a detailed enquiry and permitting villagers to submit their views.
The Court considered prior authorities on the effects of purse‑seine nets and also placed on record a prior order in W.P. No. 17171 of 2018 (S. Harikrishnan v. Secretary to Government) directing effective implementation of G.O.Ms. No. 40 and attached status reports describing administrative steps taken in Cuddalore district (advertisements, warning letters, constitution of a committee, inspections, charge sheets, penalties, awareness programs and planned further action). The present writ petition was disposed of by the bench by dismissal.
Legal Issues Presented
- Whether G.O.Ms. No. 40 dated 25.03.2000 (prohibiting fishing by pair trawling and purse‑seine nets) is liable to be quashed.
- Whether the respondents should be directed to reissue such notifications only after holding a detailed enquiry and providing villagers an opportunity to submit their submissions regarding fishing nets and their usage.
Arguments of the Parties
Petitioner's Arguments
- The notification affects the livelihood of a significant number of fishermen in the petitioner’s village and surrounding areas.
- Approximately 40–50 persons depend on each big fishing vessel and about 20–30 on small vessels; boats carry numerous nets (stated ranges), and bigger vessels use still more nets.
- Banning purse‑seine nets will reduce catch and therefore harm livelihoods; the petitioner contends there is no rationale for the ban and that it forces diversification of fishing methods (trawling, trolling line, gill netting, pot fishing, etc.).
- The petitioner sought quashing of the notification and a direction that respondents pass such notifications only after a detailed enquiry with opportunity for villagers to submit their views concerning nets and usage.
Respondent / State's Position (as reflected in status reports and record)
- The respondents (through status reports filed by Assistant Director of Fisheries, Cuddalore and Inspector of Fisheries) state that steps have been taken to implement the ban in the district: public advertisement (12.06.2018), warning letters to fishing villages (R.C. No. 982/D/2018) and awareness programmes in cluster villages.
- A committee was constituted by the District Collector (proceeding R.C. No. 982/D/2017 dated 05.07.2018) under the Sub‑Collector with members from fisheries, police, marine police, forest department and revenue officers to curb purse‑seine activities and boats fitted with high‑powered engines; inspections and joint actions were planned and commenced.
- Inspections in the conservative zone identified boats allegedly using banned nets; charge sheets were issued and adjudication proceedings were initiated before the Deputy Director of Fisheries/Adjudicating Officer, with some accused owners paying penalties and others summoned for enquiry.
- The respondents asserted continuing enforcement efforts, education of boat owners, surprise inspections, and follow‑up action if violations continue.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Kerala v. Joseph Antony, (1994) 1 SCC 301 | Empirical and scientific findings (as quoted) that purse‑seine nets encircle incoming shoals, prevent shoreward movement, kill juvenile fish and eggs and thereby cause depletion of fish stock; restrictions on certain gears are a reasonable restriction under Article 19(6) to protect weaker sections (poor fishermen). | The court relied on the Supreme Court's findings to observe that use of purse‑seine nets is detrimental to fishing, leads to depletion of stocks and loss of livelihood, supporting the rationale for the impugned restrictions. |
| S. Harikrishnan v. Secretary to Government, W.P. No. 17171 of 2018 (Madras High Court, order dated 04.09.2018) | Administrative direction to ensure effective implementation of G.O.Ms. No. 40; status reports and enforcement steps recorded. | The bench recorded and relied on the earlier order directing implementation and placed the accompanying status reports on record as evidence of administrative measures taken to enforce the ban. |
| Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 | Principle that courts must not transgress their jurisdiction, should avoid undertaking governmental duties or functions, and should not interfere with considered policy decisions of the executive except in specified circumstances. | The court cited these observations to stress judicial restraint and to justify refusing to substitute its view for the executive's policy choice regarding fisheries regulation. |
| BALCO Employees' Union (Regd.) v. Union of India, (2002) 2 SCC 333 | Approval of the principles of judicial restraint and non‑interference in executive policy where the policy is valid and not mala fide. | The court noted that the observations in Narmada were quoted with approval in BALCO, reinforcing the position that courts should not interfere in policy matters gone through due process. |
| Divisional Manager, Aravali Golf Club & Anr. v. Chander Haas, (2008) 1 SCC 683 | Limits of judicial power: judges must not perform executive or legislative functions; admonition for judicial modesty and restraint in administrative matters. | The court relied on these observations to emphasize that judicial intervention in policy decisions (such as fisheries regulation) is inappropriate unless legally required. |
| Tata Cellular v. Union of India (citation referenced in the opinion) | Noted trend towards judicial restraint in administrative action and the view that courts must not substitute administrative expertise with judicial preferences. | The court cited this authority in support of the proposition that the judiciary should show restraint and not encroach upon administrative functions in policy matters. |
| Common Cause (A Regd. Society) v. Union of India, (2008) 5 SCC 511 | Judicial activism cannot justify the judiciary taking over functions of the legislature or executive; courts lack the expertise and resources to perform such functions. | The court invoked these observations to underpin its decision to decline interference with a considered executive policy on fisheries regulation. |
Court's Reasoning and Analysis
The Court proceeded by reference to (a) the substantive findings in State of Kerala v. Joseph Antony concerning the ecological and livelihood harms caused by purse‑seine nets; (b) the administrative record showing steps already taken to implement G.O.Ms. No. 40 (as recorded in the earlier bench order in S. Harikrishnan and the status reports from fisheries authorities in Cuddalore); and (c) constitutional principles limiting judicial interference in executive policy decisions.
The court noted the Supreme Court's conclusions that purse‑seine and similar mechanised nets can cause irreparable damage to fish stocks by killing juveniles and eggs, cordoning off pelagic stocks and depriving poor inshore fishermen of their catch, thereby threatening their livelihood. On the procedural side, the Court recorded the status reports that administrative measures (advertisements, warning letters, constitution of committees, inspections, charge sheets and penalties, awareness programmes and planned surprise inspections) are being taken to enforce the ban in the relevant district.
The Court then applied the constitutional doctrine of separation of powers and repeated Supreme Court authorities emphasizing judicial restraint in matters of policy (Narmada Bachao Andolan, BALCO, Divisional Manager Aravali Golf Club, Tata Cellular, Common Cause). The Court observed that policy decisions taken by the executive should not be re‑examined by the judiciary unless there is a legal vice (for instance, violation of Article 14 or mala fides). Given the policy nature of G.O.Ms. No. 40, the material on record showing enforcement measures and the authoritative findings in State of Kerala regarding the harmful effects of the banned nets, the Court concluded that it should not intervene to quash the notification or order a fresh enquiry in the manner sought by the petitioner.
The Court expressly stated that "Courts cannot run Governments" and that where a valid law exists and a considered policy decision has been taken which is not shown to be mala fide or violative of law, the Court should not substitute its judgment for that of the executive.
Holding and Implications
Holding: The writ petition is DISMISSED. There shall be no order as to costs. The connected Writ Miscellaneous Petitions are closed.
Implications:
- Direct effect on the parties: The impugned Government Order G.O.Ms. No. 40 remains in force and the Court has declined to quash it or to direct the respondents to reissue such notifications only after holding the detailed enquiry the petitioner sought.
- Administrative consequence: The opinion records and endorses the ongoing administrative enforcement measures and awareness activities (as set out in the status reports) and refrains from substituting judicial direction for executive policy choices.
- Precedential note: The decision rests on applying existing Supreme Court authorities emphasizing judicial restraint; the Court did not purport to lay down a new precedent but applied settled principles to dismiss the petition.
WRIT Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorarified mandamus, calling for the records of the notification in G.O.Ms. No. 40 issued by the 1 respondent dated 25.3.2000 and to quash the same and consequently direct the 1 respondent to pass such notifications after holding a detailed enquiry by providing opportunity to the villagers for submitting their submissions with regard to the fishing nets and their usage.
The Order of the Court was delivered by
Subramonium Prasad, J.:— This Public Interest Litigation has been filed for quashing notification in G.O.Ms. No. 40, Animal Husbandry and Fisheries (FS.V) Department, dated 25.03.2000 issued by the Department of Fishing. The said notification reads as under.
“In exercise of the powers conferred by clause (a) of Subsection (1) of Section 5 of the Tamil Nadu Marine Fishing Regulation Act, 1983 (Tamil Nadu Act 8 of 1983) the Governor of Tamilnadu hereby prohibits, Fishing by Pair Trawling or fishing with Purse-seine nets by any fishing vessel/Craft, whether country craft or mechanized boat, irrespective of their size, and power of the engine in the entire coastal of Tamil Nadu in the territorial waters, as a measure to conserve areas of fishery.
2. This order shall come into effect on and from 25.03.2000.
MOHAN VERGHESS CHURNKATH
SECRETARY TO GOVERNMENT
2. The petitioner is a fisherman and the President of Rasapet Village Administration. According to him, the notification affects the livelihood of a number of fishermen. The petitioner would submit that about 40 to 50 people depends on one big fishing vessel/boat and about 20 to 30 people survive upon small fishing vessel/boat. The petitioner would contend that each boat consists of 50 to 180 nets for fishing, whereas bigger fishing vessel use 230 nets. The petitioner would submit that banning fishing with purse-seine nets would affect the catch. According to him, there is no rationale in imposing such a ban and this ban results in diversifying fishing methods, such as trawling, trolling line, gill netting, pot fishing etc.
3. This issue regarding banning of purse-seine nets came up in the Hon'ble Supreme Court of India in State Of Kerala v. Joseph Antony ., reported in (1994) 1 SCC 301, wherein the Hon'ble Supreme Court had an occasion to consider the effect of purse seine nets. It was therefore argued before the Hon'ble Supreme Court that using of these nets has let to increase in the total production of fish and thereby benefiting the consumers by abundant supply of fish and reduction in their price. However, the Hon'ble Supreme Court repelled this contention and observed as under.
“19. The Central Marine Fisheries Research Institute (CMFRI) Bulletin Nos. 12 and 24 (as extracted at p. 33 of Babu Paul Committee Report) further state that the purse seine nets encircle incoming shoals and prevent them from moving towards the shore. If purse seine nets are allowed to catch fish in the inshore area, there will be little or no movement of the shoals towards the coast. Thus, mechanised nets like the purse seine, do an irreparable damage to the existing stock of fish by killing the juvenile fish and fish eggs and by preventing fish breeding.
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 and 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 under 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.”
4. A perusal of the above mentioned paragraphs would show that the Hon'ble Supreme Court has held that use of these nets is detrimental to fishing and therefore, indiscriminate fishing would lead to depletion and extinction of fish stock and would actually lead to loss of livelihood.
5. This bench in W.P. No. 17171 of 2018 in S. Harikrishnan v. Secretary to Government, Department of Fisheries, Fort St. George, Chennai, by order dated 04.09.2018 has in fact directed the respondents to take steps to ensure that G.O.Ms. No. 40, Animal Husbandry and Fisheries (FS.V) Department, dated 25.03.2000, which is under challenge, is effectively implemented. Relevant paragraphs are extracted hereunder.
“14. Status Reports dated 31.08.2018 and 04.09.2018 filed by the Assistant Director of Fisheries, Cuddalore and Inspector of Fisheries (Marine), Cuddalore, are as under:
Status Report dated 23.08.2018
1. I am fifth respondent I am well acquainted with the facts of the case from the available records. I have read the petitioner affidavit. I am filing the status report on behalf of myself.
2. It is submitted that the District Collector, Cuddalore made on advertisement on 12.06.2018 in the news paper, not to use the Banned nets (purse seine nets) in this district. In continuation to that advertisement Assistant Director of Fisheries, Cuddalore also issued warning letters vide R.C. No. 982/D/2018 to all the fishing villages of this district, stating that “purse seine net operation is banned. Those violators will be punished as per Tamil Nadu Marine Fishing Regulation Act 1983”. All measures are taken to curb purse seine net operation in this district.
3. It is submitted that the Assistant Director of Fisheries, Cuddalore office issued notice to the unregistered boat owners through letter No. 982/D/2018 dated 18.06.2018, stating that banned purse seine net operators will be penalized as per Tamil Nadu Marine Fishing Regulation Act 1983. Fisheries Department takes continuous actions through District Administration and also by stopping the usage of banned purse seine net operations.
4. It is submitted that the Cuddalore District Collector Proceedings order no. R.C. No. 982/D/2018 dated 05.07.2018, a committee has been constituted under the Chairmanship of Sub-Collector, Cuddalore with Members consisting of 1. Assistant Director of Fisheries, Cuddalore 2. Inspector of Police, Cuddalore Old Town 3. Inspector of Marine Police, Cuddalore 4. Forest Department, Cuddalore to curb the activities of purse seine nets and the boats which are fitted with more than 240 HP engines.
Chairman of team/Sub collector, Cuddalore meeting was conducted with Devanapantainam and Sonangkuppam village panchayatars 6.07.2018, then decide and declared to start team inspection from 01.08.2018 onwards. Team leader consult with the team members about the issues, and decide Joint inspection will made on first week of August. Unfortunately the said program was not able to conduct due to former Chief Minister of Tamilnadu Thiru. Karunanithi hospitalized and expired. Further Team has planned joint inspection will be carried on 27.08.2018.
5. It is submitted that more over continuous awareness creation camp have been organized in 11 numbers cluster of villages in Cuddalore District on 25.07.2018 to 30.07.2018 for informing the impact of banned fishing net. Now a days fishermen have the awareness that depletion of fishery resources in the natural waters may be mainly due to the fishing by banned nets. In this awareness creation camp contribute Indian coast guard Puducherry, Marine police Cuddalore, Forest department and International fund for Agricultural Development (IFAD), Cuddalore.
6. It is submitted that on 04.07.2018 Assistant Director of fisheries Cuddalore and Inspector of marine police made a joint inspection in the conservative zone specifically for the fishing activity by the purse seiners. During this inspection 10 fishing boats belonging to Cuddalore and Nagapatinam District have been identified and actions initiated against the boat owners as per Tamil Nadu Marine Fishing Regulation Act 1983. Legal proceedings held at Adjudicating Officer/Deputy Director of fisheries, Cuddalore. Action taken details are given below.
Inspection Date No. of Boats inspected/Rul es violating boats As per TNMFR Act 1983 Details of Rules Violating Boards Action taken Remarks Boat Name Owner of Boat 04.07.2018 Total Boats Inspected - 12 Cuddalore Dist - 9 Nagapattinam Dist - 3 Violated Boats Cuddalore Dist - 7 (Unregistered-6, Registered-1) Nagapattinam Dist - 3 (Registered-3) 1) Alaikadal 2) Sri. Sivasakthi Amman Thunai 3) Sri. Murugan Thunai 4) Vidivelli 5) Om Sri. Vazhmuniswara r 6) Annai Madha 7) INDTN04MM5 741 Rajalingam, S/o. Munusamy Tsunami Nagar, Devanampattinam, Cuddalore. R. Velavan, S/o. Ramanujam Nanbargal Nagar Savadi, Cuddalore. Jayasurya, S/o. Subramaniam Tholkappiar Street Devanampattinam Cuddalore. Stalin, S/o. Sundaramoorthi Sokkalingam Street Devenampattinam Cuddalore. Nagesh, S/o. Kandasamy Shanmugam Nagar Devanampattinam, Cuddalore. Vijayaveeran, S/o. Kuppuraj Pillayar Koil North Street Devanampattinam, Cuddalore. Madhivanam, S/o. Elumalai 48, Tsuami Nagar Devanampattinam, Cuddalore. On 19.07.2018 Charge sheet issued by Adjudicating Officer/Deputy Director of Fishers, Cuddalore (File No 1714/C/2018) Offence 1) Fishing in unregistered boats. (Sec 17 A-C) 2) Fishing in Govt Banned purse seine net. (Sec 5 (1)(d)) 3) Fishing in inshore area (Sec 5 Sub Sec (3)) Boat Owner not attend enquiry in before of Adjudicating Officer/Deputy Director of Fishers, Cuddalore Subsequently Second Summon letter send on 16.08.2018 for attend the enquiry on 04.09.2018 04.07.2018 ‘8) INDTN06MM1138 ‘Balasubramani S/o. Muthal Tsunami Nagar Vanarigi Nagapattinam. ‘On 19.07.2018 Charge sheet issued by Adjudicating Officer/Deputy Director of Fishers, Cuddalore (File No. 1714/C/2018) Offence: 1) Fishing in inshore area (Sec 5 Sub Sec (3)) ‘Boat owner not attend enquiry in before of Adjudicating Officer/Deputy Director of Fishers, Cuddalore. Subsequently second Summon letter sent on 16.08.2018 for attend the enquiry on 04.09.2018 04.07.2018 9) INDTN06MM1102 10) INDTN06MM866 M. Selvaraj S/o. Manikkasamy 1/136, Main Road Keechankuppam Nagapattinam N. Ramesh S/o. Narayanasamy 287, North Street, Akkaraipet, Nagapattinam On 19.07.2018 Charge sheet issued by Adjudicating Officer/Deputy Director of Fishers, Cuddalore (File No 1714/C/2018) Offence: 1) Fishing in inshore area (Sec 5 Sub Sec (3)) Accepted the offence and paid the penalty amount Each Rs. 5000/- on 27.07.2018 and remitted Rs. 10,000/- (Rupees Ten Thousand Only) in Govt. account.
7. It is submitted that as per Chairman of team/Sub collector - Cuddalore instruction, the Assistant Director of fisheries Cuddalore given auto announcement at fishing harbour, old Town, Cuddalore to known all fishermen in Cuddalore District on 03.08.2018 for dispose of purse seine net in all boats and fishing harbour.
Status Report dated 04.09.2018
I V.K. Gangadaran S/o. Kandasami Aged (49) Hindu Working as Assistant Director of Fishers Cuddare do hereby solemnly affirm sincerely state as follow.
1. I am fifth respondent herein and I am well acquainted with the facts and circumstances of the case from the available records.
2. It is submitted that petitioner in the above Writ Petition had filed the same praying for a Writ of Mandamus directing the respondents to take action against the person using fishing gears in contra version of G.O.Ms. No. 40 of Animal Husbandry & Fisheries (FS5) department 25.03.2000 and in accordance with the sec-9 of TNMFR Act, 1983.
3. It is submitted that actions are being taken against the use of the Banned nets (purse seine nets). The District Collector, Cuddalore had made advertisements on 12.06.2018 in the news paper, not to use the said Banned nets (purse seine nets). In continuation to the said advertisement, Assistant Director of Fisheries, Cuddalore also issued warning letters vide R.C. No. 982/D/2018 to all the fishing villages of this district, stating that “purse seine net operation is banned. Those violators will be punished as per Tamil Nadu Marine Fishing Regulation Act 1983”. All necessary measures are being taken to curb purse seine net operation in this district.
4. It is submitted that the District Collector, Cuddalore, by his proceeding R.C. NO. 982/D/2017 dated : 05.07.2018 constituted a committee under the chairmanship of sub-collector Cuddalore, with the member consisting of;
1) Assistant Director of Fisheries Cuddalore,
2) Inspector of Police cuddalore ot,
3) Inspector of Marine Police cuddalore,
4) Thasildar Cuddalore and
5) Forest department Cuddalore.
5. It is submitted that necessary efforts are taken to educate the boat owners on the illegal use of Banned nets and the owners had also acknowledged to not use the same. On 04.07.2018, the Assistant Director of Fisheries Cuddalore and Inspector of Marine Police made a join inspection in the conservative zone, then 10 fishing boats belonging cuddalore and nagapattinam district boat have been identify using the banned purse seine net. Under the Marine fisheries regulation Act-1983, legal proceeding held at adjoin officer (i.e) Deputy Director of Fisheries, Cuddalore. Out of the 10 Boat owners, on 27.07.2018, 2 boat owners attended the enquiry before the adjudicating Officer and remitted the Penalty amount for the use of the said net, of Rs. 5000/- for each, after enquiry. With respect to the remaining Boat owners second summon has been issued on 16.08.2018 to appear for enquiry on 04.09.2018. Further in case of non appearance of the said date, the boat owners shall be penalized under Sec 15, which reads as;
“15. Power to enter and Search Fishing Vessel : - The authorised officer may, if he has reason to believe that any fishing vessel is being or has been used in contravention of any of the provisions of this Act or on any notification issued or rule made thereunder or any of the conditions of the licence granted under this Act, enter and 7 Downloaded from www.icsf.net search such fishing vessal and impound such fishing vessal and seize any fish found on it.
16. It is submitted that under Section 17, it is stated that;
“17. Adjudication, -(1) where any authorised Officer referred to in section 15 has reason to believe that any fishing vessel is being or has been used in contravention of any of the provisions of this Act, or any notification issued or rule made thereunder or any of the conditions of the licence granted under this Act he shall make a report thereof to the adjudicating Officer.
2) The adjudicating officer shall hold an enquiry into the matters mentioned in the report in the prescribed manner, after giving all the parties concerned a reasonable opportunity of being heard.”
Further 17-A was inserted on May 26th, 2017, which is as follows;
“17-A. Prohibition of fishing vessel for use of other purpose. - (1) No owner or master of a fishing vessel shall use or cause or allow to be used such fishing vessel : - (a) for fishing in contravention of any of the provisions of the Act or rules or of any notification issued thereunder; (b) for any unlawful activities other than fishing; (C) for fishing by using prohibited gear or carry prohibited gear onboard; (d) for fishing of any fish species declared as protected fish species under the Wild Life (Protection) Act, 1972 (Central Act 53 of 1972).”
7. It is necessary to state that new District Collector has joined on 29.08.2018 and a meeting is to held within a week from today to take further steps for action against the use of Banned nets (Purse seine nets) by the committee. Further the team will take appropriate action on any complaints received as the said Banned nets (purse seine nets) are used only in the deep sea. Further there is no complaints received from fishermen in last 30 days. However the committee has planned to make surprise inspection in the next week.
8. It is submitted that this respondent is taking sincere efforts to create awareness program in all fishermen villages on the ill effects of the use of Banned nets (purse seine nets) and necessary actions will be taken if any fishermen found using the banned purse seine net.
15. Placing on record the status reports dated 31.08.2018 and 04.09.2018 filed by the Assistant Director of Fisheries, Fisheries Department, Cuddalore - 607 003 and the submission of the learned Additional Government Pleader, writ petition is disposed of. However, there shall be no order as to cost.”
6. Impugned Government Order has been brought in only to ensure that fishing is done in a systematic manner and there is no indiscriminate fishing, leading to depletion and extinction of varieties of fish. This Government Order has been made on the basis of a policy decision.
7. It is well settled that Courts cannot run Governments. The Hon'ble Supreme Court, time and again, reminded that the Judges must not try to perform legislative or executive function.
8. In Narmada Bachao Andolan v. Union of India, reported in ((2000) 10 SCC 664), the Hon'ble Supreme Court observed as follows:—
“232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the Court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The Court has come down heavily whenever the executive has sought to impinge upon the Court's jurisdiction.
233. At the same time, in exercise of its enormous power, the Court should not be called upon to or undertake governmental duties or functions. The Courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under values of the Constitution and the rights of Indians. The Courts must therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the Court will not interfere. When there is a valid law requiring the Government to act in a particular manner the Court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words, the Court itself is not above the law.
234. In respect of public projects and policies which are initiated by the Government the Courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the Court to go into and investigate those areas which are the function of the executive. For any project which is approved after due deliberation, the Court should not refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which view may have been considered by the Government is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision.”
9. The above mentioned observations have been quoted with approval by the Hon'ble Supreme Court in BALCO EMPLOYEES' UNION (REGD) v. UNION OF INDIA ((2002) 2 SCC 333).
10. In DIVISIONAL MANAGER, ARAVALI GOLF CLUB AND ANOTHER ((2008) 1 SCC 683), in paragraphs Nos. 17, 19, 20 and 22, the Hon'ble Supreme Court held thus:—
“17. Before parting with this case, we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of the State.
19. Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily, it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.
20. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behalve like emperors. There is broad separation of powers under the Constitution and each organ of the State - the legislature, the executive and the judiciary - must have respect for the other and must not encroach into each other's domains.
22. In Tata Cellular v. Union Of India . (vide AIR para 113 : SCC para 94), this Court observed that the modern trend points to judicial restraint in administrative action. The same view has been taken in a large number of other decisions also, but it is unfortunate that many Courts are not following these decisions and are trying to perform legislative or executive functions. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimisation of the Judges' preferences. The Court must not embarrass the administrative authorities and must realise that administrative authorities have expertise in the filed of administration while the Court does not. In the words of Neely VJ (Scc p.681, para 82).
“82…. I have very few illusions about my own limitations as a Judge … I am not an accountant, electrical engineer, financier, banker, expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation.”
It is not the function of a Judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.”
11. In COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA, ((2008) 5 SCC 511), wherein at paragraph No. 40, the Hon'ble Supreme Court, held thus:—
“The justification given for judicial activism is that the executive and legislature have failed in performing their functions. Even if this allegations is true, does it justify the judiciary in taking over the functions of the legislature or executive? In our opinion it does not : firstly, because that would be in violation of the high constitutional principle of separation of powers between the three organs of the State, and secondly, because the judiciary has neither the expertise nor the resources for this. If the legislature or executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations, or by other lawful means e.g., peaceful demonstrations and agitations, but the remedy is surely not by the judiciary in taking over the functions of the other organs.”
12. It has been held that Court hearing writ petition under Article 226 of the Constitution of India, do not sit as an appellate Court over policy decision. Policy of the Government can be interfered with only if the policy is violative of Article 14 of the Constitution of India.
13. In view of the above, instant writ petition is dismissed. No Costs. Consequently, the connected Writ Miscellaneous Petitions are closed.
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