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1991 Supreme(Ker) 470
High Court of Kerala
Mamidana Jagannadha Rao, K.S.Paripoornan, JJ.
Cochin Travel Net Boat Operators Association & Ors - Appellant
Versus
The State Of Kerala & Ors - Respondent
W.A. No. 792 of 1991
Decided On : 23-08-1991
The main legal point established in the judgment is that temporary bans imposed as policy decisions in the interest of the general public may be protected by Art.19(5) of the Constitution, even if they restrict certain fundamental rights.
Headnote:
Fishing Ban - Kerala Marine Fishing Regulation Act - S.4(1)(d), R.4 - Art.19(1)(g), Art.19(5) - G.O. (P) No. 31/91/ F and PD, dated 12th July 1991, Ext P-l - G.O. (P) No. 136/84/PW/F and PD, dated 30th November 1984 - Ext. P-10 - Ext. P-l
Fact of the Case:
The petitioners challenged a government notification imposing a temporary ban on trawling operations in the sea outside territorial waters, citing violation of their fundamental rights under Art.19(1)(g) of the Constitution.
Finding of the Court:
The court found that the temporary ban was imposed as a policy decision in the interest of the general public and was protected by Art.19(5) of the Constitution. It held that the ban was reasonable and declined jurisdiction to grant the declarations sought by the petitioners.
Issues: The main issue was whether the government's notification imposing a temporary ban on trawling operations outside territorial waters violated the petitioners' fundamental rights under Art.19(1)(g) of the Constitution.
Ratio Decidendi: The court held that the temporary ban was a policy decision in the interest of the general public and was protected by Art.19(5) of the Constitution. It emphasized the difficulty of overseeing trawling operations in the sea and the potential negative impact on traditional fishermen and future sea wealth.
Final Decision: The writ appeals were dismissed, and the court concurred with the reasoning and conclusion of the learned Single Judge.
1. The petitioners in O.P. No. 7287 of 1991 and O.P. No. 7289 of 1991 are the appellants in the above two writ appeals. The said two Original Petitions and O.P. No. 7294 of 1991 were heard and disposed of together by a common judgment dated 30th July 1991, by a learned Single Judge of this Court. The respondent State has filed a common counter affidavit in the three cases. It is filed in O.P. No. 7294 of 1991. No writ appeal is filed from O.P. No. 7294 of 1991.
2. The Original Petitions were filed attacking Government notification, dated 12th July 1991 G.O. (P) No. 31/91/ F and PD, dated 12th July 1991 Ext P-l in O.P. No. 7287 of 1991 and Ext. P-10 in O.P. No. 7289 of 1991. The petitioners prayed for the grant of a declaration: (a) that they are entitled to conduct trawling operations in the sea outside 12 nautical miles from the base line; (b) to issue a Writ of mandamus to the respondents to forbear from restricting the movement of fishing vessels belonging to the petitioners or their members from the jetty in the State to the sea outside the territorial waters and back from the sea to the jetty. and for the issue of other appropriate directions. The petitioners are engaged in fishing operations using fishing boats of different types and having different engine capacities. The boats are fitted with 68 H. P. Engine and 31.5 feet length. The fishing boats are licensed under the Kerala Marine Fishing Regulation Act, 1980. The Government issued Ext. P-l order in exercise of the statutory powers conferred on them under S.4 (1) (d) of the Kerala Marine Fishing Regulation Act, 1980 read with R.4 of the Kerala Marine Fishing Regulation Rules, 1980. Thereby the Government of Kerala temporarily prohibited use of bottom trawl in the sea along the entire coast line of the State, not beyond the territorial waters specified in G.O. (P) No. 136/84/PW/F and PD, dated 30th November 1984 with effect from 15th July 1991 to 16th August 1991. The prohibition is for a temporary period of one month.
3. The three Original Petitions were filed by owners and operators of mechanised boats engaged in fishing in the deep sea. They pray for the grant of a declaration enabling them to conduct trawling operations in the sea outside twelve nautical miles from the base line. It is in that connection the grant of the Writs, mentioned above, are prayed for.
4. The gravamen of the charge voiced by the petitioners before the learned Single Judge and before us, in Writ Appeals, is that the petitioners/appellants are not being allowed to take their boats through territorial waters and such a prohibition is violative of their fundamental rights guaranteed under Art.19 (1) (g) of the Constitution to carry on any occupation, trade or business.
5. The trawling operations during monsoon season was engaging the attention of the State Government for the past several years. At least, three High Power Commissions were appointed Dr. Babu Paul Commission in 1981, Dr. A. G. Kalwar Commission "in 1984 and Dr. Balakrishnan Nair Commission in 1988. Dr. Babu Paul and Dr. A. G. Kalwar submitted final reports. But, Dr. Balakrishnan Nair has filed only a preliminary report on 26th June 1989 recommending introduction of ban on trawling during monsoon season, as a temporary measure. He said that he could give a final verdict only after a full study for three years. It is common ground that the said period of three years will be over by middle of August, 1991. The final report of Dr. Balakrishnan Nair is awaited. The preamble to Ext. P-l states that in order to protect the interest of different sections of persons engaged in fishing, particularly those engaged in fishing using traditional fishing crafts, and to maintain law and order in the sea and the need to conserve fish wealth and to regulate fishing, the Government felt that prohibition of the use of bottom trawl in the sea along the entire coastline of the State, not beyond the territorial waters with effect from 15th July 19
