Bombay High Court
Suresh Ramchandra Dhanu And Ors vs The State Of Maharashtra, ... on 20 October, 2021
Bench: Ujjal Bhuyan, Madhav J. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9327 OF 2016
WITH
INTERIM APPLICATION NO.1988 OF 2021
IN
WRIT PETITION NO.9327 OF 2016
1. Suresh Ramchandra Dhanu,
Age 57 years, Occu: Business,
Residing at 379, Sai Kutir, Danda
Khar, Mumbai-400 052.
2. Suleman Babanmiya Mulla,
Age 57 years, Occu: Business,
at Khadap Mahoulla, Mirkarwada,
Tal & Dist: Ratnagiri.
3. Hanif Latif Maldar,
Age 40 years, Occu: Business,
at Rajiwada, Tal & Dist: Ratnagiri.
4. Prathamesh Sudhakar Mondkar,
Age 29 years, Occu: Business,
at Bhagwati Bunder, Tal & Dist: Ratnagiri.
5. Adil Ibrahim Mhaskar,
Age 36 years, Occu: Business,
at Sakharinate, Tal. Rajapur,
Dist: Ratnagiri. ... Petitioners/Applicants
Versus
1. State of Maharashtra,
Fisheries Department, Government
of Maharashtra through Office of
the Government Pleader, Appellate Side
Bombay High Court, Mumbai-400 032.
2. Maharashtra Machhimar Kruti Samitee,
Machhimar Kruti Bhavan, above
Machhimar Sarvodaya Sahakari Society,
Opp. Badhwar Park, Cuffe Parade,
Colaba, Mumbai-400 005. ... Respondents
Mr. Y. H. Muchhala, Senior Advocate a/w. Mr. Sagheer A. Khan, Mohd.
1/48
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Taha, Sharique Nachan, Parth Zaveri, Mohd. Shoeb, Azeem Shaikh and
Akif Patel i/by Judicare Law Associates for Petitioners/Applicants.
Mr. Ashutosh Kumbhakoni, Advocate General a/w. Mr. Ashutosh M.
Kulkarni, Special Counsel a/w. Mr. Gaurav Sharma, S. L. Babar, AGP and
Mr. Aadesh Konde-Deshmukh, for Respondent No.1-State.
Ms. Gayatri Singh, Senior Advocate a/w Meenaz Kakalia i/by Zaman Ali,
for Respondent No.2.
CORAM : UJJAL BHUYAN &
MADHAV J. JAMDAR, JJ.
Reserved on : OCTOBER 01, 2021
Pronounced on : OCTOBER 20, 2021
JUDGMENT AND ORDER : (Per Ujjal Bhuyan, J.)
Heard Mr. Y. H. Muchhala, learned senior counsel for the
petitioners; Mr. Ashutosh Kumbhakoni, learned Advocate General for
respondent No.1 - State; and Ms. Gayatri Singh, learned senior counsel
for respondent No.2.
2. By filing this petition under Article 226 of the Constitution of
India, petitioners seek quashing of order dated 05.02.2016 passed by the
Joint Secretary to the Government of Maharashtra in the Agriculture,
Animal Husbandry, Dairy Development and Fisheries Department.
3. By the impugned order dated 05.02.2016 issued under section
4(1) of the Maharashtra Marine Fishing Regulation Act, 1981,
respondent No.1 i.e., State of Maharashtra in the Fisheries Department
has regulated fishing in the territorial waters of the state in the manner
indicated therein including non-granting of new licenses for purse seine/
ring seine fishing with the ultimate object of bringing down such fishing
licenses to 182: allowing purse seine/ring seine fishing through
mechanized vessel only during the period from September to December
and that too within Zones II, III and IV as specified therein. In addition,
certain other restrictions have been imposed such as mesh size.
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4. Five petitioners have joined together and have instituted the
present writ petition in a representative capacity representing 222
persons who carry on purse seine fishing in the coast of Maharashtra. A
list of all those persons carrying on purse seine fishing in the State of
Maharashtra has been annexed to the writ petition.
5. It is stated that petitioners belong to fishermen community. They
are engaged in their traditional occupation of fishing in the coast of
Maharashtra through which they earn their livelihood. Over the years
they have improvised fishing techniques used by them and in course of
time they started using purse seine net (referred to as 'PSN' for short).
6. State of Maharashtra enacted the Maharashtra Marine Fishing
Regulation Act, 1981 (briefly 'the 1981 Act' hereinafter) to provide for
the regulation of fishing by fishing vessels in the sea along the coastline
of the State of Maharashtra and for matters connected therewith or
incidental thereto. In exercise of the powers conferred by section 25 of
the 1981 Act, the Maharashtra Marine Fishing Regulation Rules, 1982
(briefly 'the 1982 Rules' hereinafter) have been enacted.
7. According to the petitioners owing to local politics and business
rivalry, respondent No.1 had issued notifications dated 10.12.1987 and
13.10.1999 under section 4(1) of the 1981 Act prohibiting use of special
type of fishing nets known as purse seine gear by mechanized fishing
vessels within the territorial waters of the districts of Greater Mumbai,
Thane, Raigad, Ratnagiri and Sindhudurg. The same was challenged
before this Court by a group of petitioners in Writ Petition No.285 of
1988. It is stated that vide order dated 05.07.1988 this Court had
admitted the writ petition for hearing and stayed the notification dated
10.12.1987. Challenge to the second notification dated 13.10.1999 was
incorporated in the writ petition by way of amendment. By the judgment
and order dated 09.03.2004, a division bench of this Court allowed the
writ petition by striking down the impugned notifications dated
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10.12.1987 and 13.10.1999. The said decision has since been reported
in 2004 (5) Bom.C.R. 766, Abdul Hamid Vs. State of Maharashtra.
8. Respondent No.1 challenged the said judgment of this Court dated
09.03.2004 before the Supreme Court by filing Petition for Special
Leave to Appeal (C) No.10316 of 2004. While the Special Leave
Petition has been admitted and numbered as Civil Appeal No.8334 of
2004, Supreme Court declined to stay operation of the judgment and
order dated 09.03.2004. It is stated that the said Civil Appeal is pending
before the Supreme Court.
9. Petitioners and other traditional fishermen got their vessels
registered under section 9 of the 1981 Act and applied before the
Licensing Officer for grant of licence under section 6(1) for fishing by
PSN. However, the licensing officer refused to grant licence vide his
letters dated 11.06.2015 on the ground that Commissioner of Fisheries
vide letter dated 08.08.2012 had directed not to issue any fresh licence
for fishing by PSN. Such instructions were on account of a purported
decision taken by the then Deputy Chief Minister and others in a
meeting held on 03.08.2012. It is stated that such refusal to grant licence
has adversely affected the traditional fishermen doing fishing by PSN.
No reasonable opportunity of being heard was granted by the licensing
officer before declining to grant licence.
10. At the instance of business rivals an application was filed bearing
No.15 of 2015 before the National Green Tribunal, West Zone, Pune.
National Green Tribunal by its order dated 28.05.2015 directed
respondent No.1 not to issue any fresh licence for fishing by PSN. When
the PSN operators moved the National Green Tribunal for impleadment
and for vacation of the order dated 28.05.2015, National Green Tribunal
passed order dated 02.09.2015 clarifying that in case such applications
were to be decided by the competent authority on merit, order dated
28.05.2015 passed by the National Green Tribunal would not influence
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the decision making authority and that the decision be taken
independently on merit as per law.
11. The minutes of the meeting dated 03.08.2012 and the letter of the
Commissioner of Fisheries dated 08.08.2012 came to be challenged
before this Court in Writ Petition No.9115 of 2014 and Writ Petition
No.10740 of 2015. In the proceedings of the aforesaid two writ petitions,
this Court vide order dated 28.10.2015 held that the letter dated
08.08.2012 was prima-facie illegal and directed the Licensing Officer to
decide the applications for licence uninfluenced by the decisions taken
in the meeting held on 03.08.2012.
12. However, the Licensing Officer vide letters dated 26.11.2015
refused to grant licence to the applicants. On appeal filed before the
Commissioner of Fisheries, refusal letters dated 26.11.2015 of the
Licensing Officer were set aside vide orders dated 28.01.2016. The
Licensing Officer was directed to take fresh decision in accordance with
law expeditiously.
13. It is stated that on one pretext or the other the Licensing Officer
delayed the decision. Ultimately the Licensing Officer informed the
applicants that Government of Maharashtra in the Fisheries Department
had issued the impugned order dated 05.02.2016 which was duly
published in the official gazette prohibiting issuance of new licenses for
purse seine / ring seine fishing (including mini purse seine fishing).
14. Aggrieved by the aforesaid, petitioners have preferred the present
writ petition challenging the legality and validity of the aforesaid order
dated 05.02.2016 primarily on the grounds that the same is ultra vires the
1981 Act, it violates the fundamental rights of the petitioners under
Articles 14, 19(1)(g) and 21 of the Constitution of India, besides being
actuated by malice.
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15. Respondent No.1 has filed reply affidavit through Yuvraj Akaram
Chougale, Assistant Commissioner, Fisheries, Mumbai City. It is stated
that the impugned order was issued with due compliance to the
provisions of the 1981 Act after consultation with the Advisory
Committee constituted as per section 3 of the said Act. State government
has validly exercised power under section 4 on the basis of exhaustive
study by the Expert Committee. The Expert Committee headed by Dr.
Somvanshi prepared the report after carefully evaluating, examining and
scrutinizing the information and after conducting field visits followed by
interaction with the stakeholders. Referring to section 3 of the 1981 Act,
it is stated that the state government is empowered to constitute
Advisory Committee for each coastal district for which members of the
fishing community are to be co-opted. Under section 3(2), Advisory
Committee may advise the state government on matters pertaining inter
alia to regulation or prohibition of specified fishing in specified areas.
Reference has also been made to section 4(1) of the 1981 Act to
highlight the point that state government has been entrusted with the
power to regulate / restrict or prohibit certain fishing activities within a
specified area.
15.1. It is submitted that regulation of PSN fishing sought to be
imposed by the impugned order is a reasonable restriction within the
meaning of clause (6) of Article 19 of the Constitution of India. That
apart, petitioners are not restricted from using other modes of fishing net
except in the months of June and July. Restrictions on fishing during the
months of June and July are for mechanized fishing boats and there is no
restriction on non-mechanized fishing boats. Reliance has been placed
on a decision of the Supreme Court in State of Kerala Vs. Joseph
Antony, AIR 1994 SC 721 in which Supreme Court upheld the decision
of the state government of Kerala prohibiting use of certain types of
fishing nets, namely, purse seines, ring seines, pelagic and mid-water
trawls. Supreme Court held that such restrictions imposed was a
reasonable restriction within the meaning of Article 19(6) of the
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Constitution.
15.2. According to the deponent, by way of the impugned order dated
05.02.2016, state government has regulated PSN fishing within the
territorial waters of Maharashtra. There is no complete ban on PSN
fishing within the state territorial water. Only issuance of new PSN
licences has been prohibited.
15.3. Adverting to the facts of the case, respondent No.1 has stated that
petitioners are carrying on modern means of fishing by using fishing
method of trawl net and purse seine net (PSN). Respondent No.1 has
provided the status of 222 fishermen having different fishing licences
including the five petitioners from which it is seen that both trawling and
purse seine is carried out by the maximum i.e., 195.
15.4. Elaborating on the methodology of purse seine fishing, it is stated
that PSN is used to catch fish moving mainly in big shoals. However,
due to PSN method, the fish catch comprises of big, small, juvenile fish
and egg carrying brooders in huge quantities having adverse impact on
marine life as well as on the socio-economic condition of traditional
fishing community.
15.5. Vide Government Resolution dated 09.09.2011, a Study
Committee was constituted under the chairmanship of Dr. V. S.
Somvanshi, Ex-Director General of Fisheries Survey of India. One of
the members of the Study Committee was Shri. Rambhau Patil, General
Secretary of National Fish Workers' Forum, Mumbai representing the
fishermen. The Study Committee was entrusted to look into the
following aspects:-
a. review of purse seine fishing in the State of Maharashtra;
b. examine environmental and financial impact on traditional
fishing due to purse seine fishing; and
c. decide the number of purse seine fishing vessels based on the
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maximum sustainable yield (MSY).
15.6. The area of study was all maritime districts of Maharashtra. The
Committee also reviewed the position of purse seine fishing in
neighbouring states. Study Committee interacted with fishermen all
along the coastline of Maharashtra which is 720 Kms long covering
seven maritime districts, namely, Thane, Palghar, Mumbai City, Mumbai
Suburban, Raigad, Ratnagiri and Sindhudurg. The Committee carried
out in depth study as per the terms of reference and recorded 25
observations and recommendations.
15.7. Study Committee submitted detailed report dated 10.05.2012 to
the Government of Maharashtra. It is stated that Government of
Maharashtra accepted the report in its entirety on 16.05.2015.
15.8. In exercise of the powers conferred by section 3(1) of the 1981
Act, state government constituted advisory committees in six districts in
the State of Maharashtra directing the Fisheries Department to place the
report of the Study Committee before all the 6 District Advisory
Committees. Additional Commissioner of Fisheries, Maharashtra vide
letter dated 27.05.2015 directed involvement of actual fishermen in the
consultation process. It is stated that the report of the Study Committee
along with Marathi translated copies of the 25 recommendations were
placed before the 6 District Advisory Committees. Advisory Committees
in turn invited representations of fishermen including those using PSN
method. Majority of Advisory Committees accepted the report of the
Study Committee.
15.9. Acting on the report of the Study Committee headed by Dr.
Somvanshi and after considering the minutes of meetings of Advisory
Committees, Government of Maharashtra in exercise of powers
conferred by sub-section (1) of section 4 of the 1981 Act and in
supersession of previous orders dated 10.12.1987 and 13.10.1999 passed
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the impugned order dated 05.02.2016 regulating PSN fishing in the
territorial waters of the State of Maharashtra. Thereafter the deponent
mentioned the various types of regulations brought into force by way of
the impugned order dated 05.02.2016.
15.10. It is reiterated that the impugned order only seeks to regulate
PSN fishing within the territorial waters of the State of Maharashtra and
prohibits issuance of new PSN licences. There is no complete ban on
PSN fishing within the territorial waters of Maharashtra. Impugned
measures have been undertaken for the purpose of sustainable fishing,
safeguarding the interest of traditional fishermen as well as coastal
ecology.
15.11. While acknowledging that earlier notifications dated 10.12.1987
and 13.10.1999 were struck down by this Court and the issue is pending
before the Supreme Court, it is stated that Dr. Somvanshi Committee
Report and the impugned order dated 05.02.2016 have been brought to
the notice of the Supreme Court by the state government by filing
affidavit. Referring to the earlier notifications, it is stated that by those
notifications, PSN was totally banned in Maharashtra state territorial
water. However, by the impugned order dated 05.02.2016, PSN fishing
has been regulated and only new PSN licences are not being issued.
Petitioners are already holding PSN licences and they are also carrying
out fishing operation by trawling in addition to PSN. Therefore, it cannot
be said that the impugned order has adversely affected their livelihood.
15.12. Ban on PSN fishing from January to May is as per suggestion
of the Somvanshi Committee Report because during these months purse
seiners catch large number of juvenile fish. That apart, the months of
June and July are declared as fishing ban period for mechanized fishing
vessels as per the 1981 Act. The month of August falls within the
monsoon period with water current at sea being very high. Therefore,
considering all the above aspects, state government has taken decision to
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ban PSN fishing during the period from January to August.
15.13. Petitioner No.1 vide application dated 29.12.2016 and petitioner
Nos.3 and 4 vide application dated 30.12.2016 had informed Assistant
Commissioner of Fisheries, Mumbai and Ratnagiri respectively that they
would continue fishing by PSN gear beyond 12 nautical miles where the
state government has no jurisdiction to regulate and / or restrict any kind
of fishing, further stating that they would not carry out PSN fishing
within the territorial waters of Maharashtra.
15.14. Reverting to Dr. Somvashi Committee Report, it is stated that
the report recommended categorizing coastal waters of Maharashtra into
four zones. PSN fishing is prohibited only in Zone I from Zai to Murud
but PSN fishing is permitted in Zones II, III and IV from September to
December. In almost 60% of the coastline, PSN fishing is permitted.
Therefore, the impugned order has struck a balance between traditional
fishermen and modern fishermen.
15.15. All the 6 District Advisory Committees had submitted their
minutes of meetings including remarks to the Government of
Maharashtra. After a detailed study of Somvanshi Committee Report
including the recommendations made and minutes of all 6 District
Advisory Committees, Government of Maharashtra took the view that
recommendations of Somvanshi Committee is protecting the interest of
both traditional and modern fishing sectors as well as for effective
control of fish stock in the sea. After accepting the said report on
16.05.2015, the impugned order came to be issued on 05.02.2016.
15.16. Government of India vide order dated 07.05.2013 had constituted
a Technical Committee to review the duration of the ban period and to
suggest further measures to strengthen conservation and also to look into
management aspects. The Technical Committee submitted its report in
September, 2014 to the central government. It was observed that
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seasonal fishing ban should be applicable to both purse seine and ring
seine fishing boats. Since peak spawning period of important pelagic
species coincide with the monsoon, the ban on fishing by seiners would
be helpful to the stock. It was further observed that the number of
existing purse / ring seiners should be frozen and no fresh PSN licences
should be issued. However, Government of Maharashtra has not
completely banned purse seine but has only regulated PSN fishing
within the territorial waters of Maharashtra. It is also stated that there are
restrictions / regulations on PSN fishing in the states of Kerala, Goa and
Daman and Diu.
15.17. Regarding Rambhau Patil, it is stated that he is the General
Secretary of National Fish Workers' Forum, Mumbai and represented the
fishermen. He was also a member of the Technical Committee
constituted by the central government.
15.18. Due to over exploitation of resources by purse seiners and
encroachment by purse seiners in the reserved area of traditional
fishermen especially after the year 2004, the traditional fishermen came
under financial stress. Regulation of purse seine fishing will help the
traditional sector and traditional fishermen can revert back to their
traditional occupation.
15.19. Explaining about the modus operandi during purse seine
operation, it is stated that the net is spread only after a shoal of pelagic
fish is sighted which depends largely on the skill of the man in the
crow's nest who keeps watch on the fish shoal. Once the shoal is located,
the net is spread and the shoal is surrounded by the purse net and hauled
up by scooping. Respondent has denied the allegation that fixing the
mesh size of 25 mm for sardines and 49 mm for mackerels is arbitrary
and unreasonable. Somvanshi Committee Report suggested that the
mesh size should be bigger to release the juveniles and thereby a chance
to be given to such fish to breed at least once. The size of the mesh is
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based on scientific application and cannot be said to be arbitrary and
unreasonable.
16. Petitioners in their rejoinder affidavit have reiterated the
contentions advanced in the writ petition. Additionally, it is contended
that there was no effective consultation. District Advisory Committees
were told that state government had accepted the recommendations of
the Study Committee. In such circumstances, consultation with the
District Advisory Committees or obtaining their views was a mere
formality. Views of the PSN operators were not considered. Shri.
Rambhau Patil, one of the members of the Study Committee,
represented fishermen whose interest were opposed to that of PSN
operators. The Study Committee Report had become stale when the state
government acted on it.
17. Respondent No.1 has filed affidavit in sur-rejoinder. It is
contended that the act of issuing the impugned order by the state
government is a legislative action, being a delegated legislation.
Therefore, the same cannot be assailed on the ground of mala fides.
17.1. On the contention of the petitioners that impugned order dated
05.02.2016 has violated their fundamental right under Article 19(1)(g) of
the Constitution of India, it is submitted that the same is unsustainable in
law in view of the decision of the Supreme Court in Joseph Antony
(supra).
17.2. State government had carried out extensive consultation with the
Advisory Committees. It is stated that Fisheries Commissioner vide
letter dated 16.05.2015 had communicated acceptance of the
recommendations of the Somvanshi Committee Report by the state
government. State Government directed Commissioner of Fisheries to
hold consultation with District Advisory Committees. All the 25
recommendations of the Somvanshi Committee Report were placed
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before the District Advisory Committees. Dates of meetings of the
District Advisory Committees have been mentioned in the sur-rejoinder
whereafter it is contended that there was effective consultation by the
state government with the District Advisory Committees.
17.3. By letter dated 10.09.2015, Commissioner of Fisheries forwarded
the views of the 6 District Advisory Committees to the state government
whereafter the impugned order was issued by the state government. In
the circumstances, it is asserted that the procedure laid down under the
1981 Act was duly followed while issuing the impugned order.
17.4. Refuting the contentions of the petitioners that once a vessel
meant for trawling is converted into PSN then it cannot thereafter be
utilized for trawling, it is submitted that such a boat can easily be
converted by changing net etc. This change can be done by minor
mechanical process which may take not more than a couple of days.
While nature of fishing by both the methods is different, what is
important is that in case of fishing by trawling the drugging / scratching
bottom of the sea can be avoided. On the other hand, there can be
surface fishing and / or column fishing by trawling method. According
to respondent No.1, petitioners have in fact converted their PSN vessels
to trawling vessels.
17.5. Regarding credibility of Shri. Rambhau Patil, respondent No.1
has reiterated the statements made in this connection in the reply
affidavit. However, it is stated that the Somvanshi Committee had
consulted all the stakeholders including PSN operators, which is a matter
of record.
17.6. Finally respondent No.1 has justified passing of the impugned
order dated 05.02.2016 and contends that no interference is called for.
18. Respondent No.2 in its reply affidavit has stated that it is a
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registered organization representing about 20000 traditional fishermen
engaged in fishing and allied activities in the coastal districts of
Maharashtra including Thane, Mumbai, Ratnagiri, Raigad and
Sindhudurg. These fishermen are the original inhabitants of the seven
islands comprising the city of Mumbai. Their forefathers were engaged
in traditional fishing in the coastal areas of Mumbai since time
immemorial. The traditional fishermen are engaged primarily in rampani
fishing, gill-net fishing, small hand and net fishing. Respondent No.2
has alleged that the traditional fishermen have been greatly affected by
the use of purse seine net gear which began in the 1980s and continued
unabated leading to substantial decline in fish stock besides adversely
impacting marine ecology thus affecting the livelihood of traditional
fishermen.
18.1. Supporting the impugned order, it is stated that the same was
issued after consultation with the Advisory Committees constituted as
per section 3 of the 1981 Act. Impugned notification was based on an
exhaustive study by the Expert Committee which had prepared the
report after carefully evaluating, examining and scrutinizing the
information and after conducting field visits and interacting with the
stakeholders. Thereafter the impugned order was issued by the state
government in exercise of powers under section 4 of the 1981 Act.
Relying on the decision of the Supreme Court in Joseph Antony
(supra), it is stated that by the impugned order no fundamental right of
the petitioners under Article 19(1)(g) of the Constitution of India has
been violated. As per the Expert Committee Report, PSN fishing has an
adverse impact on the marine and coastal ecology as well as on the
livelihood of traditional fishermen. Therefore, regulation on PSN fishing
vide the impugned order falls within the ambit of reasonable restriction
under clause (6) of Article 19 of the Constitution of India.
18.2. Respondent No.2 has denied that petitioners are and represent
traditional fishermen. It is alleged that petitioners are engaged in
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commercial fishing using sophisticated equipments and mechanized
boats. Use of PSN has seen the pelagic fish stock declining rapidly in the
coastal districts of Maharashtra.
18.3. Respondent No.2 has denied contention of the petitioners that the
impugned order is a result of local politics. Regulation of PSN fishing
has been done to safeguard the interest of traditional fishermen as well
as to protect the coastal ecology.
18.4. Impugned order was issued after following the due process. There
was effective consultation with the Advisory Committees in which
representatives of PSN operators were present.
18.5. Regarding the notifications of 1987 and 1999, it is stated that
those were struck down by this Court as those were not based on expert
committee report. On the other hand, the impugned order is based on an
expert committee report.
18.6. PSN fishermen use mechanized nets whereby much more fish
than the traditional nets are caught. PSN has close meshes which catches
even the smallest fish and their eggs leading to depletion of stock. Such
a method of fishing is ecologically harmful. PSN kills juvenile fish and
fish eggs thereby impeding fish breeding. In this connection, reference
has been made to a report published by the National Human Rights
Commission called 'The Coasts, the Fish Resources and the Fish
Workers' Movement, 2006'.
18.7. Fish stocks in the sea face serious threats of depletion due to the
rampant use of PSN. Fish catch in Maharashtra has almost halved in
recent years from 449000 tonnes in 2002 to 244000 tonnes in 2010.
There is a direct link between PSN fishing and reduction in pelagic fish
stock. Fish catch by PSN comprises of juvenile fish in large quantity.
Mesh size in PSN being extremely fine and the nets being spread across
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a radius of 3 kms., they are responsible for large scale destruction of
eggs and juveniles.
18.8. Merely because the Study Committee submitted its report in May,
2012 while the state government issued the impugned order in February,
2016 does not make it arbitrary, unreasonable or illegal. The report
cannot be said to have become stale as it formed the basis of wide
consultation leading to the impugned order.
18.9. Respondent No.2 has justified constitution of the Study
Committee vide Government Resolution dated 09.09.2011 and supports
the recommendations made by the Committee. Regarding the allegation
against Rambhau Patil, it is the contention of respondent No.2 that it
would be highly unreasonable and absurd to suggest that Rambhau Patil
would influence the other members of the Study Committee.
18.10. Finally, it is contended that the impugned order was passed in
due compliance to the provisions of the 1981 Act and does not suffer
from any legal infirmity. No case for interference is made out. Writ
petition should, therefore, be dismissed.
19. Mr. Muchhala, learned senior counsel for the petitioners has
opened his argument by strongly assailing the impugned order dated
05.02.2016 as being completely unconstitutional being in violation of
Articles 14, 19(1)(g) and 21 of the Constitution of India. He submits that
petitioners are traditional fishermen and over the years they have
improvised their fishing technique and now they are carrying on their
trade by using PSN to catch pelagic fish. Placing reliance on the decision
of the Supreme Court in Sodan Singh Vs. New Delhi Municipal
Corporation, (1989) 4 SCC 155, he submits that petitioners are entitled
to carry on their trade of fishing by using PSN, it being their
fundamental right. The prohibition on issuance of new licences for using
PSN and drastically reducing the period for PSN fishing besides limiting
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to some geographical regions amounts to interference in the lawful
business of the petitioners. Those cannot be construed as reasonable
restrictions under Article 19(6) of the Constitution. On the point of
reasonable restriction, learned senior counsel has placed reliance on the
following decisions:-
a. Chintaman Rao Vs. State of M.P., AIR 1951 SC 118;
b. State of Madras Vs. V. G. Raw, AIR 1952 SC 196;
c. Cellular Operators Association of India Vs. Telecom
Regulatory Authority of India, (2016) 7 SCC 703;
19.1. Learned senior counsel has also assailed the impugned order as
ultra vires the provisions of the 1981 Act. In this connection, he first
attacked constitution of the Somvanshi Committee The committee
comprised of eight members out of which five were from the
government departments; two were academics; and one member
Rambhau Patil who had purportedly represented the interest of the
fishermen. However, learned senior counsel submits that Rambhau Patil
represented the interest of those fishermen who carry on the trade of
fishing by use of trawlers and other traditional fishing nets and strongly
opposed to PSN fishing. At one point of time, he was Chairman of
respondent No.2 which is opposing the writ petition. It is stated that in
Civil Appeal No.8334 of 2004 pending in the Supreme Court, Shri.
Rambhau Patil had filed intervention application supporting the
notifications dated 10.12.1987 and 13.10.1999. His contention is that the
sole agenda of Shri. Rambhau Patil was to oppose PSN fishing and to
ban the same. In such circumstances, formation of the committee itself
lacked fairness. Mr. Muchhala has also assailed the Somvanshi
Committee Report on various other grounds particularly on the ground
that there was no proper consultation.
19.2. Referring to the report of the Somvanshi Committee, he submits
that the report was submitted to the government along with
recommendations on 05.10.2012. The impugned order which is based on
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this report was issued almost four years thereafter on 05.02.2016.
Referring to recommendation No.22 of the Somvanshi Committee,
Mr.Muchhala submits that even as per the said report, the government is
required to review the status of fish stock and fishing efforts every five
years so as to take appropriate decision with regard to quantum of
fishing that can be permitted during subsequent five years. The five year
period as per recommendation of the Somvanshi Committee had expired
on 09.05.2017. Therefore, continuance of the impugned order beyond
09.05.2017 would be contrary to the recommendation and hence
arbitrary. In fact at this stage, such recommendations of the Somvanshi
Committee have become totally irrelevant and otiose.
19.3. Adverting to the impugned order Mr. Muchhala submits that PSN
fishing has been totally prohibited in Zone I from Zai to Murud which
covers a distance of more than 320 kms. of the coastline of Maharashtra
covering the districts of Palghar, Thane and Raigad. Even in the other
three zones i.e., Zones II, III and IV, PSN fishing is permitted to existing
licence holders only from September to December i.e., for four months
in a year. This he submits is a drastic and a disproportionate measure.
19.4. Further, the direction to reduce PSN licence holders from 502 to
262 and thereafter to 182 without laying down any criteria is arbitrary
and unreasonable.
19.5. Mr. Muchhala has also attacked the impugned order on the ground
of hostile discrimination against those fishermen using PSN and thus
violating Article 14. He submits that PSN is eco-friendly and is the most
efficient gear for pelagic fishing. Since the gear is for targeted fishing, it
catches pelagic fish which are found on the surface of the water and,
therefore, does not touch the bottom of the sea. As such, it does not
disturb the flora and fauna found at the bottom of the sea. By eliminating
one fishing gear i.e., PSN and permitting other more harmful
mechanized gears, the danger to ecology is not mitigated. Submission of
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Mr. Muchhala is that PSN catch targeted species like mackerel and
sardine. If mackerel and sardine are not caught due to ban imposed on
PSN, those would migrate to other places where they would be caught.
Respondent No.1-State has not come up with any convincing data as to
why it is singling out only PSN. The number of PSN boats is less than
4% of the total number of mechanized boats operating in the coastline of
Maharashtra. PSN catch is also less than 7% of the total catch.
Therefore, such restriction on PSN fishing is without any justification
being wholly unreasonable and manifestly arbitrary. On the point of
manifest arbitrariness, he relies on the decision of the Supreme Court in
Shayara Bano Vs. Union of India, (2017) 9 SCC 1.
19.6. In so far decision of the Supreme Court in Joseph Antony (supra)
is concerned, learned senior counsel submits that was a case which was
confined to the facts and circumstances prevailing along the Kerala
coastline at that point of time. He submits that the topography of Kerala
coastline and that of Maharashtra coastline are totally different. While
there is no gradual gliding of the seacoast in the Kerala coastline and
thus there is no significant continental shelf in the Kerala coastline, in
the Maharashtra coastline there is a large continental shelf. That apart, in
the Kerala case, PSN fishing was carried out by entrepreneurs who were
not traditional fishermen.
19.7. Referring to section 4 of the 1981 Act, Mr. Muchhala submits that
there was no effective consultation by the state government with the
Advisory Committees before the impugned order was passed. The whole
process of purported consultation with the Advisory Committees is
nothing but a sham. Before consulting the District Advisory Committees,
the state government had already accepted the findings and
recommendations of the Somvanshi Committee Report. The government
officers who constituted the majority in the Advisory Committees were
determined to implement the recommendations. Thus there was no
meaningful and effective consultation. That apart, the report was in
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English language. It was, therefore, obligatory on the part of the state
government to circulate the Marathi translation of the report and the
recommendations; but that was not done, which has also vitiated the
decision making process.
19.8. He, therefore, submits that the impugned order may be set aside
and the state be directed not to cause any interference in the legitimate
business of the petitioners.
20. Mr. Kumbhakoni, learned Advocate General appearing for
respondent No.1 at the outset submitted a brief note which he termed as
Brief Note No.I. From this he explained that exclusive economic zone of
India is upto 200 nautical miles from the shoreline. It also includes state
territorial water zone of 12 nautical miles. While the state territorial
water zone is under the jurisdiction of the state government, the
remaining portion of exclusive economic zone is under the jurisdiction
of the central government. From this he submits that the state
government is authorized to control and regulate fishing activity within
the state territorial water zone of 12 nautical miles. Beyond the said 12
nautical miles, the central government is authorized to control and
regulate fishing activity within the exclusive economic zone.
20.1. In order to regulate marine fishing activity within the state
territorial water zone, the state legislature in terms of Entry 21 of List II
of the Seventh Schedule to the Constitution enacted the Maharashtra
Marine Fishing Regulation Act, 1981 (already referred to as 'the 1981
Act' hereinbefore).
20.2. Learned Advocate General submits that Maharashtra has a
coastline of 720 kms. Based on scientific study and administrative
convenience, the coastline has been divided into four zones.
20.3. Referring to the impugned order dated 05.02.2016, he submits
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that by way of the said order the state is only regulating fishing activities
within the state territorial water zone. It regulates fishing by way of
purse seine / ring seine. Thereafter learned Advocate General has
highlighted the restrictions imposed by the impugned order, at the same
time highlighting the aspect that there is no complete prohibition of PSN
fishing.
20.4. He submits that before the impugned order was issued an expert
committee was constituted headed by Dr. Somvanshi. The Expert
Committee after exhaustive field visits, interaction with stakeholders and
after a study of all relevant aspects submitted its report on 14.12.2012
making certain recommendations. The report was accepted by the state
government on 16.05.2015. Thereafter, the recommendations were
circulated amongst the 6 District Advisory Committees appointed under
section 3 of the 1981 Act. This was followed by effective consultations.
20.5. Mr. Kumbhakoni submits that to undertake fishing activity within
the exclusive economic zone from 12 nautical miles upto 200 nautical
miles coming under the jurisdiction of the central government, there was
a provision for issuance of letter of permission by the central
government vide order dated 12.11.2014. To obtain such letter of
permission, central government had issued certain well defined
guidelines. After obtaining letter of permission, any fisherman of India
could undertake fishing within the exclusive economic zone beyond 12
nautical miles. He submits that the above order and guidelines have
since been rescinded by the Government of India. Presently, there is no
specific policy or guidelines for fishing beyond the state territorial water
zone within the exclusive economic zone.
20.6. Thereafter learned Advocate General presented what he called
Brief Note No.II. He submits therefrom that purse seine / ring seine
fishing can be operated by any mechanized fishing vessels during the
period from September to December from the zones from Murud to
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Banda having specification of nets as mentioned in the impugned order.
According to him, pursuant to the impugned order the concerned
fishermen are operating their vessels using trawl or other gears within
and beyond the state territorial waters from January to May as presently
there is no specific policy / guidelines of the central government for
fishing beyond the state territorial waters.
20.7. Elaborating further learned Advocate General submits that all the
purse seine operators have converted their vessels for trawl fishing. This
dual method of fishing is an age-old practice for converting purse seiners
into trawlers. Only minor changes are required that too on the deck of
the fishing vessel. Learned Advocate General has submitted a statement
giving details of the licences involving the petitioners and other
fishermen using PSN wherefrom he submits that in Ratnagiri district as
many as 196 licence holders are using both purse seine and trawling
methods. From this he submits that purse seine vessels can easily be
converted into trawlers and those are also sea worthy for fishing beyond
the state territorial water zone.
20.8. Continuing his submissions, learned Advocate General submits
that the impugned order dated 05.02.2016 issued under section 4 of the
1981 Act is a piece of delegated legislation. Refuting the grounds of
challenge to the impugned order made by the petitioners, he submits that
what the petitioners are doing is hunting or killing of fish in the sea on a
very large scale leading to alarming depletion of fish stock. This is
nothing but commercialization of natural resources which is a national
wealth. Thus what the petitioners are claiming as a right is nothing but
destruction of natural resources and appropriation of the profits thereof
to themselves.
20.9. He submits that there is no violation of Articles 14, 19(1)(g) and
21 of the Constitution of India as all that the impugned order does is to
regulate purse seine fishing. Disputing the contention of the petitioners
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that the impugned action is arbitrary, he submits that challenge to a
legislation or a delegated legislation can be made only on the ground of
manifest arbitrariness, which is not only not pleaded but is also
otherwise not available to the petitioners. In so far assailment under
section 4 of the 1981 Act is concerned, he submits that the Somvanshi
Committee was appointed as an expert committee on 09.11.2011. It
submitted its report to the state government on 10.05.2012. On
16.05.2015, the state government accepted the report along with the
recommendations. District Advisory Committees constituted under
section 3 were consulted on various dates whereafter the impugned order
was passed on 05.02.2016. From this, he submits that due process was
followed. There is nothing in the 1981 Act which says that advisory
committees constituted under section 3 of the 1981 Act should be
consulted before accepting or rejecting the report. State government is
required to consult the advisory committees constituted under section 3
before issuing any order under section 4 and not before accepting the
report of an expert committee. Until and unless, the government accepts
the report of the expert committee, there would be no occasion to consult
the advisory committees.
20.10. He submits that though the report of the expert committee was
in English language, Marathi translation of all the recommendations
were provided to every member of the advisory committees in advance.
In addition, copies of the entire report of the expert committee were also
made available to the advisory committees.
20.11. Learned Advocate General has also justified the impugned order
on the basis of public trust doctrine as spelt out by the Supreme Court in
Association for Environment Protection Vs. State of Kerala, (2013) 7
SCC 266 and in Common Cause Vs. Union of India, (2017) 9 SCC 499.
20.12. Learned Advocate General points out that in so far purse seine
method of fishing is concerned, the period from September to December
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is most suitable for such type of fishing when the fishermen obtain
maximum sustainable yield (MSY).
20.13. Learned Advocate General submits that various states such as
Karnataka, Kerala, Tamil Nadu and the union territory of Daman and
Diu have placed similar restrictions on PSN fishing like the State of
Maharashtra. In fact notification dated 25.03.2000 was issued by the
State of Tamil Nadu prohibiting fishing by pair trawling or fishing with
PSN. This was challenged before the Madras High Court by way of a
public interest litigation, M. G. Santhanaraj Vs. Secretary, Government
of Tamil Nadu. By order dated 06.03.2019, a division bench of Madras
High Court dismissed the challenge holding that the impugned order was
issued on the basis of a policy decision and there was no good reason to
interfere with such policy decision. He, therefore, submits that no
interference with the impugned order dated 05.02.2016 is called for and
therefore, the writ petition should be dismissed.
21. Ms. Gayatri Singh, learned senior counsel appearing for
respondent No.2 at the outset submits that though the writ petition has
been filed by five persons claiming to represent the interest of 222
fishermen using PSN, no details as to how the impugned order will
impact them have been furnished. No details have been provided within
which zone the petitioners operate, whether in Zone I where PSN
operations have been prohibited or in the other three zones where PSN
operations are merely regulated.
21.1. Referring to various provisions of the 1981 Act, more particularly
to sections 3 and 4, she submits that the impugned order cannot be
termed as ultra vires the 1981 Act, not to speak of being
unconstitutional. Impugned order lays down the extent of prohibition
and regulation of fishing by PSN in specified areas having regard to the
ecological impact and the impact PSN operations will have on
traditional fisher folk.
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21.2. Ms. Singh has laid great emphasis on the distinction between PSN
operators and traditional fisher folk, also called artisan fishermen, and
submits that PSN operators are not traditional fisher folk. In this
connection, she has referred to and relied upon a report by the National
Human Rights Commission. According to her, PSN involves high power
boats and fine mesh fishing nets which conforms to the definition of
'industry fishing'. PSN operators catch approximately 600 to 800 tonnes
of fish per annum in contrast to traditional fisher folk whose fish catch
per annum is approximately 5 tonnes.
21.3. Highlighting the adverse impact of PSN fishing, learned senior
counsel for respondent No.2 has placed heavy reliance on the decision of
the Supreme Court in Joseph Antony (supra).
21.4. Terming the operations of PSN operators as harmful for the
ecology and adversely affecting traditional fishermen, she submits that
prohibition and regulation brought about by the impugned order are fully
justified and those satisfy the test of reasonable restrictions under Article
19(6) of the Constitution of India.
21.5. Supporting the submissions of learned Advocate General, learned
senior counsel for respondent No.2 submits that PSN operators are also
carrying on fishing by trawling. In fact, most PSN operators have
applied for dual type of fishing gear i.e., PSN and trawling. Therefore,
the argument that their livelihood would be impacted by the impugned
order does not hold good. She also submits that three of the petitioners
have written to the Assistant Fisheries Commissioner stating that they
will continue to fish beyond 12 nautical miles where the impugned order
does not apply.
21.6. Learned senior counsel for respondent No.2 has also placed
before the Court statistics to show what she alleges to be the harmful
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effects of PSN fishing.
21.7. She has also placed reliance on the Somvanshi Committee Report
comprising of technical experts and various stakeholders. On the
question of inclusion of Rambhau Patil in the Expert Committee, she
submits that Rambhau Patil as the President of the apex fishing union of
all coastal states of the country represents the interest of traditional
fisher folk who are key stakeholders. As a matter of fact, he was also a
member of the Technical Committee constituted by the central
government whose report has been relied upon by the petitioners
themselves.
21.8. In conclusion, learned senior counsel for respondent No.2 submits
that due process was followed by the state by having report from the
Expert Committee and thereafter having consultation with the Advisory
Committees on the recommendations given by the Expert Committee. It
is for this reason that some amount of time was consumed before
issuance of the impugned order on 05.02.2016 but that does not make or
mean that the Somvanshi Committee Report had become stale or could
not have been acted upon by the state. She, therefore, submits that the
writ petition is completely misconceived and is as such liable to be
dismissed.
21.9. Learned senior counsel for respondent No.2 has submitted written
arguments as well as a compilation of judgments.
22. Mr. Muchhala, learned senior counsel for the petitioners has at the
outset questioned the use of or application of the theory of maximum
sustainable yield (MSY) highlighted by learned Advocate General. He
submits that Somvanshi Committee Report had calculated the maximum
hours of fishing for maximum sustainable yield in a very presumptive
manner which is devoid of common sense. To highlight this argument,
he has explained as to how such calculation is humanly impossible.
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22.1. He also highlights that there was lack of effective / due
consultation with the District Advisory Committees as a result of which
the state has ignored the socio-economic condition of PSN operators. In
fact in the Somvanshi Committee Report, there is no reference to the
socio-economic condition of PSN operators. This is due to the fact that
no PSN operators were made members of the Somvanshi Committee
while those fishermen having hostility towards PSN operators were
represented in the Somvanshi Committee. He asserts that the
consultative process has to be meaningful and not merely a formality.
22.2. On the doctrine of public trust, Mr. Muchhala submits that there is
no dispute to the proposition that the state being the public trustee of the
natural resources of the country is entitled to legislate to protect the
natural resources. Petitioners have also not questioned constitutional
validity of section 4 of the 1981 Act. It is the simple case of the
petitioners that either as public trustee or as the authority endowed with
the power to make subordinate legislation in respect of public trust, the
power has to be exercised in accordance with the principles of
constitutionalism and within the limitations of the principles of
constitutional law which has not been done in the instant case.
22.3. In so far submission of learned Advocate General that States of
Tamil Nadu, Kerala etc. have also prohibited carrying on PSN fishing,
he submits that reasonableness of restrictions will depend upon the facts
of each case.
22.4. Mr. Muchhala referred to the Division Bench judgment of this
Court in Abdul Hamid (supra) and submits that restrictions as imposed
vide the impugned order have been held to be violative of Article 19(1)
(g) of the Constitution of India. He submits that this decision still holds
good and is squarely applicable to the facts of the present case.
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22.5. On the reliance placed by learned senior counsel for respondent
No.2 on the report of the National Human Right Commission regarding
the alleged harmful effects of PSN fishing, Mr. Muchhala submits that
those were the views of the individual authors and not that of a statutory
body like National Human Rights Commission. Therefore to portray
those as views of the Commission is wrong.
23. Submissions made by learned counsel for the parties have
received the due consideration of the Court.
24. At the outset we may advert to the Maharashtra Marine Fishing
Regulation Act, 1981 (already referred to as the '1981 Act' hereinabove).
The 1981 Act has been enacted by the state legislature to provide for the
regulation of fishing by fishing vessels in the sea along the coastline of
the State of Maharashtra. Section 2(k) defines 'state' to mean the State of
Maharashtra and includes the territorial waters along the entire coastline
of Maharashtra.
24.1. Section 3 provides for constitution of advisory committee. This
section being relevant, the same is extracted hereunder:-
"3. Constitution of Advisory Committees.- (1) The State
Government may by order constitute an Advisory Committee
for each coastal District, with the District Magistrate as the
Chairman and the Assistant Director of Fisheries of the District
as the member-secretary, with representatives of the State Port
Department and the Police Department as members. The
Chairman shall co-opt representatives of other Government
Departments and of the fishermen and the trade as he may
deem fit. The Committee shall recommend to the State
Government the regulations to be enforced under Chapter II.
(2) The Committee shall advise the State Government on the
following issues which may come up for consideration while
enforcing the Act:-
(i) reservation of specified areas of the sea for fishing
by vessels of a specified type;
(ii) prohibition of vessels of specified type or specified
types from fishing in any specified area;
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(iii) laying down maximum number of fishing vessels of
specified type to be allowed for fishing in specified
areas;
(iv) laying down the maximum number of fishing vessels
of specified types to be registered in each of the ports
in the District;
(v) regulation or prohibition to catch specified species of
fish in any specified area;
(vi) regulation or prohibition of specified fishing gear in
specified areas;
(vii) prescribe timings for fishing operations where
necessary;
(viii) any other matter which would facilitate effective
enforcement of the provisions of the Act."
24.2. From the above we find that as per sub-section (1), the state
government may by order constitute an advisory committee for each
coastal district with the District Magistrate as the Chairman and
Assistant Director of Fisheries as Member Secretary. The Chairman has
the power to co-opt representatives of other government departments,
fishermen and the trade. The committee is empowered to recommend to
the state government the regulations to be enforced under Chapter II
which deals with regulation of fishing. Then sub-section (2) mentions
the issues on which the committee shall advise the state government.
24.3. As noticed above, Chapter II deals with regulation of fishing. It
comprises of section 4 to section 13. Section 4 of the 1981 Act is
relevant for our present deliberation. Section 4 reads as under:-
"4. Power to regulate, restrict or prohibit certain fishing
activities within specified area:- (1) The State Government
may, having regard to the matters referred to in sub-section (2),
and after consultation with the Advisory Committee, by order
notified in the Official Gazette, regulate, restrict or prohibit,-
(a) the fishing in any specified area by such class or classes
of fishing vessels as may be specified ; or
(b) the number of fishing vessels which, may be used for
fishing in any specified area ; or
(c) the catching in any specified area of such species of
fish and for such period as may be specified in the
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orders; or
(d) the use of such fishing gear in any specified area as
may be prescribed.
(2) In making an order under sub-section (1), the State
Government shall have regard to the following matters,
namely:-
(a) the need to protect the interests of different sections of
persons engaged in fishing, particularly those engaged
in fishing using traditional fishing craft such as country
craft or canoe;
(b) the need to conserve fish and to regulate fishing on a
scientific basis;
(c) the need to maintain law and order in the sea;
(d) any other matter that may be prescribed."
24.4. As per sub-section (1) of section 4, the state government may
having regard to the matters referred to in sub-section (2) and after
'consultation' with the advisory committee by order notified in the
official gazette regulate, restrict or prohibit fishing in any specified area
by such class or classes of fishing vessels as may be specified or the
number of fishing vessels which may be used for fishing in any specified
area etc. As per sub-section (2) of section 4, in making an order under
sub-section (1) the state government shall have regard to the need to
protect the interest of different sections of persons engaged in fishing
particularly those engaged in fishing using traditional fishing craft, the
need to conserve fish and to regulate fishing on a scientific basis.
25. While on the 1981 Act, we may mention that section 6 deals with
licensing of fishing vessels; section 8 provides for cancellation,
suspension and amendment of licences; and section 9 deals with
registration of vessels. Section 25 is the rule making provision.
25.1. In exercise of the powers conferred by sub-sections (1) and (2) of
section 25 of the 1981 Act, Government of Maharashtra has framed a set
of rules called the Maharashtra Marine Fishing Regulation Rules, 1982.
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26. Sections 3 and 4 of the 1981 Act came up for consideration before
a division bench of this Court in Abdul Hamid (supra). In that case,
challenge was made to two notifications dated 10.12.1987 and
13.10.1999 issued by the Government of Maharashtra under section 4(1)
of the 1981 Act prohibiting use of purse seine gear by mechanized
fishing vessels within the territorial waters of the districts of Greater
Mumbai, Thane, Raigad, Ratnagiri and Sindhudurg. This Court after
referring to sections 3 and 4 of the 1981 Act more particularly
constitution of Advisory Committee observed that the object of co-
opting representatives of the fishermen obviously is to give to the
fishermen who are likely to be affected by the order an opportunity of
being heard in the meetings of the Advisory Committee which is
required to be consulted before an order regulating, restricting or
prohibiting any particular method of fishing is passed. In the facts of that
case, it was noticed that persons who were interested in imposing the
prohibition and who were the beneficiaries of the notification were given
representation while the persons likely to be affected by the notification
were denied representation on the Advisory Committee, thus, frustrating
the very object of co-opting representatives of fishermen. It was in that
context, this Court held that section 3 of the 1981 Act has to be
interpreted keeping in mind provisions of Articles 19 and 21 of the
Constitution of India. It was held that if the statute (section 4 of the 1981
Act) requires consultation with the Advisory Committee and also
requires representative of the fishermen to be included in the Advisory
Committee (section 3 of the 1981 Act) then the representative to be co-
opted must be of the fishermen likely to be affected by imposition of the
restriction. In the facts of that case, it was found that the Advisory
Committee did not include representative of fishermen using purse seine
gear with mechanized boats. Therefore, it was held that constitution of
the Advisory Committee was not proper and there was no proper and
effective consultation with the properly constituted Advisory Committee
before issuance of the two notifications. It was held as follows:-
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7. * * * * *
We find it difficult to accept the submission of the learned AGP
that the Advisory Committee was properly constituted! because
the very object of coopting the representative of fishermen was
to give an opportunity to the persons who were likely to be
affected by the regulation, restriction or prohibition to be
imposed under Section 4 and considering their views. The
persons who were interested in imposing the prohibition (and
who are the beneficiaries of the notification) were given
representation while the persons who were likely to be affected
by the notification were denied representation on the Advisory
Committee denying the very object of co-opting the
representative of the fishermen. We must interprete Section 3 of
the Act keeping in mind the provisions of Article 19 and 21 of
the Constitution of India. Article 21 of the Constitution of India
confers a right to life which has been interpreted not more
physical existence but the right to live with human dignity.
Means of livelihood are necessary to live with human dignity.
Though right to life is yet to be expanded to include right to
work, any state action which deprives a person of his existing
or traditional source of livelihood and work would have to
strictly pass the test of reasonableness embodied in Clause (6)
of Article 19 of the Constitution of India. Any state action
making an inroad on the persons's right to carry on his usual
occupation, trade or business would be eschewed unless the
restriction is strictly required in the interest of general public
and strictly satisfies the test of reasonableness. Restriction
would not be reasonable if it is more than necessary. If the
Statute (Section 4 of the Act) requires consultation with the
Advisory Committee and also requires the representative of the
fishermen to be included in the Advisory Committee (Section 3
of the Act) then the representative to be coopted must be of the
fishermen likely to be affected by imposition of the restriction.
Such a construction of Section 3 of the Act would be in
consonance with the spirit of Article 19 and 21 of the
Constitution of India and rules of natural justice. As the
Advisory Committee did not include the representative of the
fishermen using purse seine gear with mechanized boats the
constitution of Advisory Committee was not proper and there
was no proper and effective consultation with the properly
constituted Advisory Committee before issuing of the
impugned notifications banning and prohibiting use of purse
seine gear with mechanised boats.
27. Let us now briefly analyze sections 3 and 4 of the 1981 Act in the
light of the interpretation given by this Court in Abdul Hamid (supra).
As we have seen, section 3 provides for constitution of Advisory
Committee for each coastal district with the District Magistrate as the
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Chairman with power to co-opt representatives from fishermen amongst
others. The Advisory Committee shall advise the state government on
the issues mentioned therein while enforcing the 1981 Act. The issues
include reservation of specified areas of the sea for fishing by vessels of
a specified type; prohibition of vessels of specified type or prohibition of
specified type of fishing in any specified area etc. The use of the word
'shall' is significant. The import of section 3 is that the Advisory
Committee so constituted shall advise the state government on the issues
mentioned therein which may arise for consideration while enforcing the
1981 Act.
27.1. Section 4 stipulates that the state government having regard to the
need to protect the interest of different sections of persons engaged in
fishing particularly those engaged in traditional fishing, the need to
conserve fish and to regulate fishing on a scientific basis etc. and after
consultation with the Advisory Committee regulate, restrict or prohibit
fishing in any specified area by such class or classes of fishing vessels as
may be specified, the number of fishing vessels which may be used for
fishing in any specified area, catching in any specified area of such
species of fish and for such period as may be specified, and the use of
such fishing gear in any specified area as may be prescribed. Thus
before passing an order regulating, restricting or prohibiting fishing in
any specified area, the state government is required to hold consultation
with the Advisory Committee. The word 'shall' appearing in section 3(2)
whereby the Advisory Committee shall advise the state government,
when read in conjunction with the word 'consultation' appearing in
section 4 as per which the state government may pass an order of
regulation, restriction or prohibition after consultation with the Advisory
Committee would imply not only the obligatory character of the
consultation but also the bindingness of the advise of the Advisory
Committee.
27.2. In Abdul Hamid (supra), this Court had held that co-option of
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representative in the advisory committee must be of fishermen likely to
be affected by imposition of the restriction.
28. Having analyzed the above, we may pause for a moment to
deliberate upon what do we understand by the word 'consultation'.
Consultation implies a conference of two or more persons or an impact
of two or more minds. It requires the meeting of minds between the
parties involved in the process of consultation on the basis of material
facts and points to evolve a correct or at least satisfactory solution.
Consultation has to be meaningful to serve the intended purpose. If the
power can be exercised only after consultation then such consultation
must be conscious, effective, meaningful and purposeful. As Supreme
Court has held the party must disclose all the facts to the other party for
due deliberation. The consultee must express his opinion after full
consideration of the matter. Consultation or deliberation is not complete
or effective before the parties thereto make their respective points or
view known to the other or others and discuss and examine the relative
merits of their views.
29. In Union of India Vs. V. Sriharan, (2016) 7 SCC 1, one of the
questions before the Supreme Court was whether the term 'consultation'
appearing in section 435(1) of the Criminal Procedure Code, 1973
implies concurrence. Section 435(1) of the Criminal Procedure Code,
1973 requires the state government to consult the central government in
respect of grant of remission or commutation of sentence under certain
circumstances. It was in that context Supreme Court observed that the
expression 'consultation' may mean differently in different situations
depending on the nature and purpose of the statute. Meaning of
'consultation' varies from case to case depending upon the fact situation
and the context of the statute as well as the object it seeks to achieve.
However, it was explained that when it came to appointment of judges to
the High Court and to the Supreme Court since it pertains to high
constitutional office, the status of the Chief Justice of India assume
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greater significance and primacy. Therefore, in that context, the
expression 'consultation' would only mean 'concurrence'. In V. Sriharan
(supra), it was held that the expression 'consultation' appearing in
section 435(1) of the Code of Criminal Procedure, 1973 ought to be read
as 'concurrence' and primacy must be accorded to the opinion of the
central government.
30. Viewed in the above context and use of the word 'shall' in section
3 read in conjunction with the word 'consultation' as used in section 4, a
reasonable view may be taken that in such a consultative process, the
view(s) expressed by the District Advisory Committee would have
primacy and consultation in such a case may mean concurrence with the
advice of the District Advisory Committee. However, it may not be
necessary for us to render a definitive finding on this aspect of the matter
in view of the order that we propose to pass.
31. However, before that it would be appropriate to refer to the report
of the Study Committee also known as the 'Somvanshi Committee'.
32. As we have seen the Study Committee was constituted by the
State Government of Maharashtra vide Government Resolution dated
09.09.2011 with the following members:-
1. Dr. V. S. Somvanshi, Ex-Director General, Fishery Survey of
India;
2. Dr. V. D. Deshmukh, Principal Scientist, Central Marine
Fisheries Research Institute, Mumbai;
3. Dr. S. K. Chakraborty, Professor, Central Institute of
Fisheries Education, Mumbai;
4. Dr. M. M. Sridhankar, Professor, Konkan Krishi Vidyapeeth,
Dapoli, Ratnagiri;
5. Shri. Rambhau Patil, General Secretary, National Fish
Workers' Forum, Mumbai;
6. Shri. Vinod V. Nayak, Deputy Director of Fisheries (Marine),
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Mumbai;
7. Dr. S. N. Gandaje, Deputy Director of Fisheries (Statistics),
Mumbai; and
8. Dr. Sunil S. Kulkarni, Regional Deputy Director of Fisheries,
Konkan Region, Mumbai.
32.1. Dr. Somvanshi was the Chairman and Dr. Kulkarni was the
Member Secretary. In so far Rambhau Patil is concerned, he certainly
did not represent the interest of PSN fishermen. From the facts and
materials on record, it transpires that he in fact represented those
fishermen who were opposed to PSN fishing.
32.2. Terms of reference of the Study Committee or the Somvanshi
Committee were as follows:-
a. review of purse seine fishing activity in Maharashtra;
b. to examine environmental and financial impact on traditional
fishing due to purse seine fishing; and
c. to decide the number of purse seine fishing vessels based on
the maximum sustainable yield (MSY).
32.3. From the details of meetings held by the Study Committee and
visits to various fishing centres, it is not discernible that Study
Committee held meetings or discussions with PSN fishermen. After
collation of data and analysis on the basis of the same, the Study
Committee made 25 recommendations. As per recommendation No.1,
there should be judicious exploitation of the pelagic shoaling fish stock
by adopting effective management tools. There should be restriction in
further investment in purse seine fishing industry. As per the second
recommendation, the Committee recommended curtailment of such
fishing gears and not to allow mesh size of less than 25 mm for oil
sardine. Accordingly the Committee recommended vide
recommendation No.4 that purse seine gear should not be allowed to use
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mesh size less than 25mm for sardine and 49mm for mackerel to ensure
escape of young fish. The Study Committee made recommendation No.6
for stopping the present practice of fishing during January to May by
purse seiners.
32.4. In terms of recommendation No.10, Study Committee opined that
along the Maharashtra coast, it would be prudent to review the status of
fish stock and fishing efforts exerted on them periodically every five
years by the Department of Fisheries and thereafter, appropriate decision
may be taken about the quantum of fishing effort that can be permitted
during subsequent five years. Recommendation No.10 is extracted
hereunder:-
"Recommendation-10 In view of maintaining the sustainability of
the fishery, it is essential to conserve the fish
stocks through best management practices.
The most effective measure of best managing
the fishery is controlling the fishing effort. In
the present scenario along the Maharashtra
coast, it would be prudent to review the
status of fish stock and fishing efforts exerted
on them periodically every five years by the
Department of Fisheries and take appropriate
decision with regard to the quantum of
fishing effort that can be permitted during
subsequent five years. "
32.5. In its recommendation No.15, the Study Committee expressed the
view that ring seine and purse seine specifications were needed to be
standardized. Committee recommended creation of four zones as
follows:-
1. Zone - I, Zai to Murud;
2. Zone - II, Murud to Burundi;
3. Zone - III, Burundi to Jaigad; and
4. Zone - IV, Jaigad to Banda;
32.6. Committee recommended the length and height of the nets zone-
wise. Based on such recommendation, the Committee further
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recommended as per recommendation No.17 that Zone I should be
reserved exclusively for traditional fishing.
32.7. As per recommendation No.22, to maintain sustainability of
fishing it is essential to conserve the fish stock through best management
practices. The most effective measure of managing such fishing is
controlling the fishing effort. In the context of increased fishing pressure
on the fish stock along the Maharashtra coast it would be prudent to
review the status of fish stock and fishing efforts periodically every five
years by the Department of Fisheries so as to take appropriate decision
with regard to quantum of fishing effort that can be permitted during
subsequent five years. Recommendation No.22 reads as under:-
"Recommendation-22 In view of maintaining the sustainability of
the fishery, it is essential to conserve the fish
stocks through best management practices.
The most effective measure of best managing
the fishery is controlling the fishing effort. In
the present scenario of increased fishing
pressure on the fish along the Maharashtra
coast, it would be prudent to review the
status of fish stock and fishing efforts exerted
on them periodically every five years by the
Department of Fisheries so as to take
appropriate decision with regard to quantum
of fishing effort that can be permitted during
subsequent five years. "
32.8. From the above, we find that wordings of recommendation
Nos.10 and 22 are identical and repetitive; in fact, import of both the
recommendations is the same. Be that as it may, in addition to the above,
the Committee made certain other recommendations.
33. From an analysis of the above, we find that in addition to making
various recommendations, the Study Committee had also recommended
as per recommendation Nos.10 and 22 that there should be periodical
review every five years by the Department of Fisheries about the status
of fish stock and fishing efforts so that appropriate decision with regard
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to quantum of fishing effort that may be permitted during subsequent
five years can be taken.
34. We may also note that Government of India had constituted a
Technical Committee to review duration of ban period and to suggest
further measures to strengthen conservation and management aspects
(relating to fishing in sea) vide order dated 07.05.2013. The Technical
Committee submitted report to the Government of India in September,
2014. The terms of reference of the Technical Committee was amongst
others to suggest ban on purse seine fishing operation in the Indian
coast. Interestingly, Shri. Rambhau Patil was also a member of the said
Technical Committee as Chairperson of National Fish Worker's Forum,
Mumbai. As per the Technical Committee, the proposal for total ban on
purse seine was not found reasonable considering the heavy investment
already made. Banning purse seine was not advisable as this would be an
extreme measure with undesirable consequences. According to the
committee investments made in purse seiners and ring seiners was quite
significant. The fact that any investment made in a fishing vessel cannot
be put to equally viable alternate use was especially applicable to
seiners. Therefore, total ban of purse seine would be equal to sinking the
entire investment made by the enterprising fishermen. Also optimum
harvest of a significant biomass of small pelagic could not be efficiently
achieved by alternate fishing methods. Instead strict regulation on purses
and ring seines was considered an ideal way out. One of the key
recommendations made by the Technical Committee was that the
seasonal fishing ban should continue to be observed in the Indian
exclusive economic zone from 15 th April to 14th June (61 days) along the
east coast and from 1st June to 31st July (61 days) along the west coast.
35. In the circumstances, the Technical Committee suggested that
seasonal fishing ban may be made applicable to both purse seine and
ring seine fishing boats as a regulatory measure to prevent substantial
damage to the fish stock.
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36. Having noticed the above, we may now advert to the impugned
order. The impugned order dated 05.02.2016 reads as under:-
"
AGRICULTURE, ANIMAL HUSBANDRY, DAIRY
DEVELOPMENT AND FISHERIES DEPARTMENT,
Madam Cama Marg, Hutatma Rajguru Chowk,
Mantralaya Annexe, Mumbai 400 032, dated the 5th February 2016.
Order
MAHARASHTRA MARINE FISHING REGULATION ACT, 1981
No. MATSYAVI-1115/CR-282/ADF-14.- Whereas the
Government of Maharashtra has appointed the Committee under
the Chairmanship of Late Dr. V. S. Somvanshi to study the
status of purse seine fishing and its impact on the traditional
fishing and ecology along Maharashtra Coast; And Whereas, the
said Committee has submitted the report after detailed study to
the Government on the 10th May 2012 with recommendations;
And Whereas, the Government of Maharashtra has
accepted the recommendations of the said Committee;
And Whereas, the Government of Maharashtra has
decided further to protect the interest of different sections of
persons engaged in fishing particularly traditional fishing and
to conserve the fish stocks by adopting best management
practices such as controlling of the fishing efforts;
And Whereas, it is necessary to apply precautionary
approach to restrict purse seine fishing so as to avoid catching
huge quantities of juveniles and oil sardines, mackerel and
other targeted species as most of the fishes are caught before
reaching the minimum size of maturity and not even having
opportunity to reproduce once during their lifetime thereby
affecting the next year's production from the fishery. The purse
seine operation in shallow water and in breeding season of the
fishes have adverse ecological impact due to disturbance of
bottom benthic flora and fauna which affects the Maximum
Sustainable Yield level of fishing;
Now, therefore, in exercise of the powers conferred by
sub-section (1) of Section 4 of the Maharashtra Marine Fishing
Regulations Act, 1981(Mah. LIV of 1981), and the
supersession of Government Order, Agriculture and Co-
operation Department, No.MATSYAVI.1085/46082/
CR-228/FISH-2, dated 10th December 1987 and Agriculture,
Animal Husbandry, Dairy Development and Fisheries
Department, No. Lavesu-499/14141/(CR-88)/ADF-14, dated
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the 13th October 1999, the Government of Maharashtra hereby
having regard to the matters referred to in sub-section (2) of
Section 4 of the said Act, after consultation with the Advisory
Committee constituted under section 3 of the said Act, hereby
regulate the fishing in the territorial waters of the State as
follows:-
(1) No new licenses for purse seine/ring seine
(including mini-purse seine) fishing shall be
issued. The number of existing/operational purse
seine/ring seine (including mini-purse seine)
fishing licenses shall be brought down upto 262
step-by-step and finally to be brought down upto
182.
(2) The purse seine/ring seine (including mini-
purse seine) gear shall be operated by any
mechanized vessel, during the period September to
December only and within the Zones II, III and IV
specified in clause (3).
(3) In order to conserve the existing fishery and
considering the configuration of coastline as well
as continental shelf profile, purse seine fishing
shall be regulated in four Zones specified below,-
(a) Zone (I) - Zai to Murud - Area
shore to 12 NM (Nautical Miles) shall be
reserved for traditional fishing. The purse
seine/ring seine (including mini-purse
seine) fishing shall be prohibited in this
Zone.
(b) Zone (II) - Murud to Burundi -
Area upto 10 m (≡ 5 fathom) depth from
shore shall be reserved for traditional
fishing. The purse seine/ring seine
(including mini-purse seine) fishing shall
be permitted beyond the 10 m (≡ 5
fathom) depth.
(c) Zone (III) - Burundi to Jaigad -
Area upto 20 (≡ 5 fathom) depth from
shore shall be reserved for traditional
fishing. The purse seine/ring seine
(including mini-purse seine) fishing shall
be permitted beyond the 20 m (≡ 10
fathom) depth.
(d) Zone (IV) - Jaigad to Banda - Area
upto 25 (≡ 12.5 fathom) depth from shore
shall be reserved for traditional fishing.
The purse seine/ring seine (including
mini-purse seine) fishing shall be
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permitted beyond the 25 m (≡ 12.5
fathom) depth.
(4) No purse seine/ring seine (including mini-purse seine)
gear having less than, 25 mm mesh size for oil sardines and 49
mm mesh size for mackerels shall be operated by mechanized
fishing vessels within the territorial waters of the State.
(5) No purse seine/ring seine (including mini-purse seine)
gear other than specifications mentioned below shall be
operated by any mechanized fishing vessel in the territorial
waters of the State.
___________________________________________________________
Sr. Zone Specifications of Purse
No. Seine/Ring Seine
(including mini-purse
seine) Nets
_____________________
Length(m) Heights(m)
1 I : Zai to Murud ..Purse seine/ring seine
(including mini-purse seine)
nets are prohibited in this Zone.
2 II : Murud to Burundi ..125 - 500 10 - 40
3 III : Burundi to Jaigad ..250 - 500 20 - 40
4 IV : Jaigad to Banda ..300 - 500 25 - 40
(6) To conserve the fish stock the use of hydraulic winch
(Boom) shall be prohibited for purse seine/ring seine
(including mini-purse seine) fishing operation.
(7) Any indiscriminate activity such as use of chemicals to
tranquilize fish catch shall be prohibited in the territorial
waters of the State.
By order and in the name of the Governor of Maharashtra.
Sd/-
C. N. Suryavanshi,
Joint Secretary to Government."
37. From a perusal of the impugned order we find that Government of
Maharashtra had accepted the recommendations of the Study Committee
or the Somvanshi Committee. To avoid catching of huge quantities of
juveniles, sardines, mackerels etc. it was decided to restrict purse seine
fishing. Exercising powers under sub-section (1) of section 4 of the 1981
Act and in supersession of the previous orders dated 10.12.1987 and
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13.10.1999 and after consultation with the Advisory Committee,
Government of Maharashtra in the Fisheries Department has regulated
the fishing in the territorial waters of the state in the manner indicated in
the impugned order.
37.1. Before dealing with the method of regulation we may point out
two crucial aspects. Firstly, Government of Maharashtra had accepted
the recommendations of the Study Committee. The impugned order does
not say that Government of Maharashtra had accepted only some
recommendations of the Study Committee. In other words, what is
deducible is that Government of Maharashtra has accepted all the 25
recommendations of the Study Committee which includes
recommendation Nos.10 and 22 requiring the Fisheries Department to
carry out a review exercise after five years so as to decide the steps to be
taken for the next five years. This would mean that the regulatory steps
taken vide the impugned order may not be required after five years or
may require relaxation after five years or may be required to be
continued depending upon the outcome of the review exercise. But what
is important is that the study carried out cannot be a one-time exercise. It
has to be carried out periodically and regulatory measures taken are
required to be reviewed periodically. As per the Study Committee, it
should be after five years. The report was submitted in the year 2012 and
was accepted by the government in the year 2015. Either way, the five
period is over. Therefore, a review exercise is called for at this stage as
to whether the regulatory measures mentioned in the impugned order are
required to be continued for the next five years or are required to be
relaxed / modified or are required to be altogether done away with.
37.2. The second aspect is that though the impugned order mentions
about 'consultation' with the Advisory Committee before issuance of the
said order, the nature and contours of such consultation have not been
spelt out. We have already taken a prima facie view that opinion / advice
of the Advisory Committee may have primacy having regard to the
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language and object of the statute. Even otherwise also, the
'consultation' has to be a conscious and a meaningful effort and ought to
have been reflected in the impugned order.
38. The regulatory measures provided by the impugned order includes
the following:-
1. No new licences for purse seine / ring seine (including mini
purse seine) fishing shall be issued. Number of licences shall be
brought down step by step, firstly to 262 and finally to 182;
2. The Maharashtra coastline has been divided into four
zones. In so far Zone-I i.e., from Zai to Murud is concerned, purse
seine / ring seine (including mini purse seine) fishing shall be
prohibited. However, in the other three zones purse seine / ring
seine (including mini purse seine) fishing shall be permitted with
certain restrictions;
3. Purse seine / ring seine (including mini purse seine) gear
shall be operated by any mechanized vessel in Zones-II, III and
IV during the period from September to December only;
4. Purse seine / ring seine (including mini purse seine) gear
should have minimum 25mm mesh size for oil sardines and
49mm mesh size for mackerels;
5. The size of the nets is mentioned which are to be strictly
maintained while carrying out such fishing operations in Zones-II,
III and IV.
6. In addition to the above, two other restrictions have been
imposed.
39. From the above it is evident that the state has imposed prohibition
and regulation without any timeline, as if for perpetuity. As we have
already discussed above, as per the recommendations of the Study
Committee itself which have been accepted by the Government of
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Maharashtra in toto, there is requirement for periodical review every five
years. This aspect has been completely overlooked by the state while
passing the impugned order. That apart, the nature of consultation with
the Advisory Committee does not find any reflection in the impugned
order. Further, the impugned order in its present form adversely affects
the rights of PSN fishermen. It was, therefore, necessary to have taken
into account their views by incorporating their representatives either in
the Study Committee or in the District Advisory Committees. Though
the state has contended that the District Advisory Committees did
comprise of representatives of PSN fishermen and that their objections
were forwarded, the impugned order is totally silent as to how the
objections were dealt with. It is in this context, even at the cost of
repetition, we say that the consultation envisaged in section 4(1) of the
1981 Act is not a mere formality. Such consultation has to be genuine
and meaningful. It must be conscious and effective.
40. It is trite law that in the exercise of the power of judicial review,
the writ court is concerned with the decision making process. The
decision making process has to be fair and reasonable. It should not be
arbitrary. Principles of natural justice are required to be complied with.
In other words, persons likely to be affected by the impugned order or
action are required to be heard. It is true that while exercising the power
of judicial review, the High Court does not sit as a court of appeal. But if
it finds that the above principles have been breached, certainly
interference is called for.
41. Before parting with the record, we may advert to Joseph Antony
(supra). State of Kerala had issued two notifications dated 29.11.1980.
By one of the notifications, specified area was defined as the territorial
waters of the state and as per the other notification use of gears like
purse seine, ring seine, pelagic trawl and mid-water trawl was prohibited
along the coastline together with other regulatory steps. The above two
notifications were successfully challenged by operators of mechanized
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vessels using purse seine in the Kerala High Court, and the two
notifications were struck down by the High Court. While clarifying that
government may re-examine the whole question and take a fresh
decision, it was directed that till fresh decision was taken by the
government, mechanised fishing vessels should be allowed to operate
only beyond 10 kms from the shore. Supreme Court took the view that
the steps taken by the Government of Kerala was to protect the vast
majority of the fishermen who belonged to the weaker sections of the
society. There was no infraction of the statute. It was held that
restrictions imposed by the impugned notifications were reasonable
restrictions within the meaning of Article 19(6) of the Constitution of
India. Supreme Court also took the view that High Court was not
justified in confining the operation of the notifications only to 10 kms
from the base coastline.
41.1. We may mention that the two notifications dated 29.11.1980 were
issued by the Government of Kerala under section 4 of the Kerala
Marine Fishing Regulation Act, 1980 (Kerala Act). Section 4 of the
Kerala Act empowers the state government to regulate, restrict or
prohibit certain matters within specified area. The matters are referred to
in sub-section (2) of section 4, which are similar to the ones in sub-
section (2) of section 4 of the 1981 Act. However, there is a significant
difference in sub-section (1) of section 4 of the Kerala Act and sub-
section (1) of section 4 of the 1981 Act. As per sub-section (1) of section
4 of the Kerala Act, the state government may having regard to the
matters referred to in sub-section (2) regulate, restrict or prohibit -
(a) the fishing in any specified area by such class or classes of
fishing vessels as may be prescribed; or
(b) the number of fishing vessels which may be used for fishing
in any specified area; or
(c) catching in any specified area of such species of fish and for
such period as may be specified in the notification; or
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(d) the use of such fishing gear in any specified area as may be
prescribed.
41.2. However, what is to be noted is that in sub-section (1) of section 4
of the 1981 Act, the requirement is that the state government may pass
such an order of regulation , restriction or prohibition but only after
'consultation' with the advisory committee constituted under section 3 of
the 1981 Act. This difference in the statutory requirement in the Kerala
Act vis-a-vis the 1981 Act is the distinguishing feature and has a
significant bearing on the present lis as discussed above.
42. We may also mention that the division bench judgment of this
Court in Abdul Hamid (supra) was challenged by the state before the
Supreme Court which it is stated is presently pending as Civil Appeal
No.8334 of 2004. It is further stated that Supreme Court had declined to
stay the judgment of this Court in Abdul Hamid (supra) which would
mean that the ratio laid down in Abdul Hamid (supra) would be
operative in so far the State of Maharashtra is concerned.
43. Thus on a thorough consideration of all aspects of the matter, we
are of the view that the matter is required to be remanded back to the
first respondent to consider afresh continuation of the regulatory and
prohibitory measures imposed vide order dated 05.02.2016.
44. Consequently, we remand the matter back to respondent No.1 for
taking a fresh decision on review, as the period of five years has lapsed
as per the recommendation of the Study Committee, in accordance with
law after due consultation with the District Advisory Committees and
after giving an opportunity of hearing to the petitioners or
representatives of the PSN fishermen, having regard to the discussions
made above. While carrying out the review exercise on remand,
respondent No.1 shall examine the need to either continue with the
regulatory and / or prohibitory measures or to relax / modify those
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measures or to withdraw the same. Let the above exercise be carried out
within a period of three months from the date of receipt of a copy of this
order. Till such decision is taken, the present arrangement shall continue.
45. Writ petition is disposed of accordingly. Interim Application is
also disposed of. However, there shall be no order as to costs.
(MADHAV J. JAMDAR, J.) (UJJAL BHUYAN, J.)
Balaji / Minal
