Sukulal And Ors vs State Of Kerala And Ors

The petitioners claim to be members of Kerala Fishermen Welfare Fund Board and they have been operating China nets, using electricity in

accordance with Kerala Inland Fisheries and Acquaculture Rules.

They claim that they hail from the family of traditional fishermen. Their fathers/forefathers owned China net and that the fish nets are installed in

their property and they are operating their own China nets from their own properties in Vechoor village, which is on the banks of Vembanad lake. It is

stated that the respondents 3 to 5 have not taken any action to regularise their fishing activities by issuing licence. It is stated that there were about

300 fishermen operating China nets, in the area under the control of the 4th respondent also, without obtaining any licence. It is stated that notices like

Ext.P2 were pasted on their Chinese nets on 03.06.2019 directing them to remove their unauthorised Chinese nets before 10.06.2019, failing which,

the department would remove the same in accordance with law. It is stated that the 5th respondent has been harassing them alleging that they are

indulged in illegal use of Chinese nets and that attempts are being made to demolish the Chinese nets with the help of Fire Force, Police and KSEB

officers. It is stated that after submitting representations before the 3rd respondent requesting for regularisation of their fishing, they filed W.P.(C)

No.16678/2019 before this Court and this Court as per Ext.P4 judgment dated 21.06.2019 disposed of the same directing the Deputy Director of

Fisheries, Kottayam to consider their representations. It is stated that a meeting was thereafter convened, in which 69 fishermen including the

petitioners attended. Petitioners complain that instead of considering their grievances, the respondents 3 and 5 were insisting that they should remove

the Chinese nets within one week. The petitioners did not agree for the same whereas all other participants, were compelled to sign their undertaking

against using Chinese nets. It is stated that thereafter Ext.P6 order was passed on 26.10.2019 rejecting their representations and stating that

regularisation of fishing by Chinese net is not permissible when the Inland Fisheries and Aquaculture Rules govern the grant of licence and fishing in

public water bodies. It was stated that licence to Chinese nets are prohibited. They were directed to remove the Chinese nets installed by them

unauthorisedly in the vicinities of Vembanad lake within a period of one week. Petitioners alleged that such directions are issued only to satisfy the

owners of resorts and tour operators, so as to enable them to go on with their business freely on removal of the nets by persons like petitioners.

Petitioners pointed out that the respondents are picking and choosing fishermen for removal of nets. Pointing out the information collected from the

office of the Deputy Director of Fisheries, Alappuzha, it is stated that there are 242 Chinese net operators under the said Deputy Director of Fisheries,

and they are not faced with any such discriminatory treatment, as in the case of the petitioners.

Petitioners pointed out that Government had issued Ext.P9 order on 13.11.2014 protecting persons like petitioners, when Fisheries Department had

initiated steps for removing Chinese nets in the backwaters of Kayamkulam to facilitate the development of National Waterway No.III, wherein the

China nets were ordered to be removed under a rehabitation scheme evolved by Government in the meeting convened by the State Government on

13.11.2014, in connection with the removal of Chinese nets and appropriate steps were taken to mitigate the grievances of persons like petitioners.

Petitioners approached this Court stating that even after submitting Ext.P10 representation before the District Collector, no positive action was taken

and the harassment continues directing removal of their China nets allegedly for facilitating development of National Waterway No.III.

The 3rd respondent has filed a statement. It is stated that licences were issued for 126 Chinese nets for operation in the Vembanad lake, in

Kottayam district. It is stated that no fresh licences were issued pursuant to order no.61373/F/280/F&PD dated 26.12.1983. According to the

respondents, the petitioners erected the illegal nets after 26.12.1983. The petitioners have not registered their Chinese Fishing Nets with the Kerala

Fishermen Welfare Fund Board as alleged by them. It is stated that the authority to issue registration and licence is vested with the Fisheries

Department. The membership in Kerala Fishermen Welfare Fund Board would not amount to permission or approval for the usage of unauthorised,

unlicensed nets. Producing Annexure R3(a) letter dated 30.07.2013 of the Assistant Executive Engineer, KSEB, Vaikom, it is stated that the persons,

who are unauthorisedly using fishing nets, have drawn electric wires illegally and they have been asked to remove the same. It is stated that pursuant

to the policy decision taken by the Government on 26.12.1983, no fresh licence or registration are issued to any Chinese nets. It is further stated that

as per Rule 4(vi) of the Kerala Inland Fisheries and Acquaculture Rules, 2013, the authorised officer is duty bound to remove unauthorised nets and

prevent any constructions or obstructions violating the provisions of Kerala Inland Fisheries and Aquaculture Act, 2010. It is stated that the

department has not issued any notices to the petitioners as it is not aware of the persons, who are holding or possessing licence. Therefore the notices

were affixed on illegal nets and after the prescribed time, the nets were tried to be removed on 13.06.2019, which the owners objected to. It is stated

that the District Collector had given 10 more days time to remove the same. It is stated that the KSEB officials also accompanied them for

disconnecting the electric lines. It is also stated that pursuant to the judgment in W.P.(C) No.16678/2019, a hearing was conducted on 19.07.2019, in

which the petitioners had appeared. Thereafter, the respondents received application dated 19.06.2019 for registration and licence of Chinese net from

the petitioners. It is stated that several of the owners of illegal Chinese nets have removed their nets on their own. It is also stated that there are about

8000 active fishermen, who are earning their livelihood through legal operations of fishing nets in Vembanad lake. The illegal Chinese nets are causing

hardship to such legal fishing activities. It is stated that the petitioners do not come under the purview of National Waterways region in Kottayam

district and therefore the compensation referred to by the petitioners for removal of the nets in National Waterways could not be applicable to

petitioners' case.

The petitioner has filed a reply affidavit stating that the 3rd respondent is denying licence and registration to the Chinese nets operated by them

arbitrarily. According to them, when 242 China nets are allowed to operate on the other side of the Vembanad lake under the 4th respondent, the

action of the 3rd respondent against the petitioners is illegal and on extraneous consideration. Petitioners claimed that the policy decision of 26.12.1983

cannot have any relevance, when the Kerala Inland Fisheries and Acquaculture Act, 2010 was notified on 08.09.2010 in supersession of Indian

Fisheries Act, 1897 and Travancore Cochin Fisheries Act, 1950. It is stated that Chapter V of the Kerala Inland Fisheries and Acquaculture Rules,

2013 provides for registration of various types of nets and Chapter VI deals with licensing of fishing activities. Schedule I of the Rules specifies the

fee for registration of nets and licensing of fishing activities.

Having heard the contentions on either side, it is seen that the authorised officers are not issuing licence or registration on the basis of a policy

decision of Government taken as early as in 1983. As pointed out by the learned counsel for the petitioners, the new Act and Rules came into force in

the year 2010 and 2013 respectively. The Act as well as the Rules contain the provisions relating to grant of licence, registration etc. Though it does

not provide for any regularisation, no provision is seen restricting or prohibiting the grant of licence or registration after the Act came into force. At the

same time, the authorised officers are stating that the Chinese Fishing Nets installed by the persons like petitioners are causing hindrance to the legally

licensed fishermen with licensed nets.

However, when the Act and Rules issued in 2010 and 2013, do not provide for any prohibition, I am of the view that the matter requires

consideration by the Government and it is for the Government to clarify whether the policy decision taken in 1983 is in operation even after the new

Act and Rules came into force and even in the absence of any provision in the Act and Rules prohibiting grant of registration/ license, why registration

is not granted in accordance with those provisions. I find force in the contention of the petitioners that policy decision taken in 1983 cannot stand in the

way of registration and grant of license after the Act and Rules came into force. Though it is necessary to see that the Fishing Nets do not cause

hindrance to the movement of Water Inland Navigation, it is also necessary to see that the right to livelihood of the fishermen like petitioners, who are

depending on these Fishing Nets are not deprived of illegally and that the fishermen are not denied this benefit of the 2010 Act and 2013 Rules.

Therefore, the matter requires consideration by Government at the earliest and a decision shall be taken on the claim of the petitioners with reference

to the provisions in the new Act and Rules and Government has to instruct the officers under it regarding the restrictions, if any, or cessation of

restrictions, if any, consequent to the enactment. The purpose of the Act as seen from the preamble is to provide for sustainable development,

management, conservation, propagation, protection, exploitation and utilisation of inland fishery sector in the State and also for promoting social

fisheries and regulate and control responsible aquaculture activities and to ensure the safety of livelihood and to protect the traditional rights of the

fishermen and ensure the availability of nutritious fish and food security to the people. Therefore Government shall take a decision on the grievance of

the petitioners after affording an opportunity of hearing to them and communicate the same to them, within a period of three months from the date of

receipt of a copy of the judgment. As an interim order was already passed in the writ petition directing to maintain status quo on, 29.11.2019, which

was being extended from time to time, such position shall continue till orders are passed by Government.

Accordingly, the writ petition is disposed of.