Judgment

P.B.SAWANT, J.

(1) THE dispute in the present case is essentially between the fishermen in the State of Kerala who use traditional fishing crafts such as catamarans, country crafts and canoes which use manually operated traditional nets and those who use mechanised crafts which mechanically operate sophisticated nets like purse seine, ring seine, pelagic trawl and mid-water trawl gears for fishing in the territorial waters of the State. In order to understand the nature and parameters of the dispute, it is necessary to know certain facts relating to the social life in the State and the marine life in the territorial waters of the State as well as the scope and object of the regulations made by the State to regulate fishing in its territorial waters.

(2) THE fisherman-population actively engaged in fishing by traditional fishing vessels in the territorial waters of the State which was earlier 5,37,017 increased by 20.8 to 6,32,967 in the year 1981. However, the average landing of the fish in the traditional sector of fishing declined by 50.3 from 3,34,992 tonnes in 1969-71 to 1,68,512 tonnes in 1980-82. During this period, the number of traditional crafts such as catamarans, country crafts and canoes increased by 14 from 29,560 to 33,805. This shows that in terms of production, the average of 3.55 tonnes per annum per fisherman declined to 1.55 tonnes per annum during this period. The annual income of the traditional fisherman-household which constitutes 89 of the total fisherman-household decreased, and the households falling below the poverty line (Rs 3,500 per annum) were as high as 98.5 in the year 1979. These figures speak for themselves and leave no doubt that the traditional fishermen constitute one of the weaker S. of the society needing protection at the hands of the State as ordained particularly by Article 46 of the Constitution.

(3) THESE fishermen till the year 1979 were exploiting exclusively the pelagic (surface) fish resources of the sea within the territorial waters by using the country crafts and the traditional nets. However, in that year for the first time, few rich enterprisers introduced the use of purse seine gears for exploiting the pelagic resources of the sea by operating costly mechanical fishing vessels. The purse seine is a sophisticated gear and covers a wide area. A purse seine net which is on an average 400 metres in circumference, covers an area of 12,826 square metres, i.e., more than 1 hectare and catches on an average 600 to 800 tonnes of fish per annum. As against this, the traditional fishing crafts in the period 1969-71 could catch only 11.3 tonnes per annum which was reduced to 5 tonnes per annum in 1980-82. These figures are not only sufficient to show the comparative advantage and disadvantage of fishing by purse seine gears as against by the traditional fishing crafts and nets but also the adverse effect which the use of the sophisticated gears had on the catch of fish by the traditional fishing crafts.

(4) IT is also necessary to note in this connection the facts about the standing stock of fish within and without the territorial waters of the State. The pelagic fish which is available in the territorial waters consists mainly of oil sardine and mackerel. The limit of the territorial waters of the State as defined by Section 3(2 of the Maritime Zones Act, 1976 (Act 80 of 1976 is the line every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate base line. One nautical mile is equivalent to 1852 metres and when converted into kilometers 12 nautical miles come to 22.22 kms. The purse seine is used only for pelagic fishing. Therefore, the only species of fish substantially available for catch by purse seine boats in the territorial waters of the State are mackerel and sardine. The mackerel and sardine are thinly distributed beyond 22 kms which is almost the limit of the territorial waters.