# [1994] Supp. 1 S.C.R. 203

- **Citation:** [1994] Supp. 1 S.C.R. 203
- **Court:** Supreme Court of India
- **Decided:** 1994-06-23
- **Case number:** Civil Appeal No. 4222 of 1993
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1994-supp-1-s-c-r-203-12392
- **Pages:** 28

## Headnote

KERALA S\VATHANTHRA MALAYA THOZHlLALI
A
FEDERATION AND ORS.
\'.
KERALA TRA\VLNET BOAT OPERATORS
ASSOCIATION AND ORS.
JUNE 23, 1994
jS.C. AGRAWAL AND B.P. JEEVAN REDDY, JJ.J
B
Kenda A/111inc Fishing Regulation Act 198(}-Sections 2(/i), 4 and
5---0rdcrs of Kera/a Go\'emment prohibiting bottom trawling altogether for 44 C
days in 111onsoo11 pc1iod and prcsc1ibi11g specifications for boats entitled to
~o beyond tenitolial 1vaters for bottonr tra1v/i11g-Held ultra \:ires tlze Act and
the Constitution-Constitution of 1ndia-Anicles 14 and 19(1)(d) and (g).
Adn1i11istratii·c Laa'-E..\71ert Con1111i1tee rcpo1ts-Hcld, Goi1en1111e1ll
entitled to decide 011 tilt' basis of such repons.
D
The Respondents are owners and operators of mechanised boats (of
32 feet length fitted with one engine of 48 to 60 HP) engaged in bottom
trawling, an activity in which the bottom of the sea is scraped for fish. The
Government of Kerala by virtue of two orders, viz. Order dated 25-6-1990 E
and order dated 20-6-1992 sought to redress not only the complaints of
traditional fishermen that bottom-trawling during monsoon months adversely affects the conservation of fish wealth and their livelihood but also
sought to implement the recommendations in the reports of expert committees.
By the said two notifications, bottom trawling was prohibited altogether for a period of 44 days in the year 1992. During the remaining
period of the year, bottom trawling was permitted for all within the
territorial waters. Further only the boats having a minimum power of 160
F
HP and a hull length of not less than 43 feet (carrying a minimum length G
of 500 metres wire rope In winch drum) were deemed to be capable of
conducting bottom· trawling beyond territorial waters, which meant that
boats with lesser horse power or length shall be deemed to be meant for
bottom trawling only olithln the territorial waters. As a consequence, boats
not answering this description were not permitted to leave the coast during
the said 44 days period.
H
203
A
B
c
204
SUPREME COURT REPORTS Jl994J SUPP. I S.C.R.
:-\ggrit'\'t'd h)· the aboYt' restrictions, the Respondents filed \Vrit Pt>ti·
tions in the Kerala f-ligh Court challenging tht' ,·alidity of the said orders
and contending that tht'ir right to botton1-tra\\'I cannot be takt'n a\\·ay
altogether ert'n for a limited peridd-(,f4.t da)·s in the year. the: High Court
allo"'t'd the \\'fit petitions and h~ld th~tt the c;ort'rnn1ent of Kt>rala \\'US not
competent to prohibit the boats of' the \\'rit petitiont'rs fron1 proceeding to
sea be~·ond the territorial waters. °The High Court declared that the
N1itification dated 25-6-1990 void in so far as it specified conditions in
regard to "any fishing vessel" \\"hich \\'as 'going beyond the tt>rritorial "·aters
for the purpose of fishing in such area. The State and the Association of
traditional fishermen appealed to the Supreme Court.
Allowing the appeals.
HELD: 1. Reading Entry 57 or List I and Entry 21 of List II togeth.er,.,
the legal position is that control and regulation of fishing and fisheries
within territorial waters is the exclusive province of the State, whereas
D beyond the territorial waters, it is the exclusive domain of the U~ion.
[208-H; 209-A]
E
F
2. The Legislature can create a conclusive presumption of law in
appropriate situations. So long as the Legislature acts within the sphere
allotted to it and does not infringe the provisions in Part III of the Con·
stitution or the constitutional limitations, the law made by it including the
conclusive presumption created by it cannot be questioned. The orders are
perfectly warranted by Section 4 of the Kerala Act. Since the said conclusive
presumption or law and the restrictions created by the First and Second
Orders respectively is created by the Government in exercise of the
statutory power conferred upon it, it has to answer the test or reasonable·
ness, for the added reason that it affects the fundamental right of the writ
petitioner guarant

## Text

_Characters 0–39,925 of 69,212. This is a partial read: ask again with offset=39925 for what follows._

KERALA S\VATHANTHRA MALAYA THOZHlLALI
A
FEDERATION AND ORS.
\'.
KERALA TRA\VLNET BOAT OPERATORS
ASSOCIATION AND ORS.
JUNE 23, 1994
jS.C. AGRAWAL AND B.P. JEEVAN REDDY, JJ.J
B
Kenda A/111inc Fishing Regulation Act 198(}-Sections 2(/i), 4 and
5---0rdcrs of Kera/a Go\'emment prohibiting bottom trawling altogether for 44 C
days in 111onsoo11 pc1iod and prcsc1ibi11g specifications for boats entitled to
~o beyond tenitolial 1vaters for bottonr tra1v/i11g-Held ultra \:ires tlze Act and
the Constitution-Constitution of 1ndia-Anicles 14 and 19(1)(d) and (g).
Adn1i11istratii·c Laa'-E..\71ert Con1111i1tee rcpo1ts-Hcld, Goi1en1111e1ll
entitled to decide 011 tilt' basis of such repons.
D
The Respondents are owners and operators of mechanised boats (of
32 feet length fitted with one engine of 48 to 60 HP) engaged in bottom
trawling, an activity in which the bottom of the sea is scraped for fish. The
Government of Kerala by virtue of two orders, viz. Order dated 25-6-1990 E
and order dated 20-6-1992 sought to redress not only the complaints of
traditional fishermen that bottom-trawling during monsoon months adversely affects the conservation of fish wealth and their livelihood but also
sought to implement the recommendations in the reports of expert committees.
By the said two notifications, bottom trawling was prohibited altogether for a period of 44 days in the year 1992. During the remaining
period of the year, bottom trawling was permitted for all within the
territorial waters. Further only the boats having a minimum power of 160
F
HP and a hull length of not less than 43 feet (carrying a minimum length G
of 500 metres wire rope In winch drum) were deemed to be capable of
conducting bottom· trawling beyond territorial waters, which meant that
boats with lesser horse power or length shall be deemed to be meant for
bottom trawling only olithln the territorial waters. As a consequence, boats
not answering this description were not permitted to leave the coast during
the said 44 days period.
H
203
A
B
c
204
SUPREME COURT REPORTS Jl994J SUPP. I S.C.R.
:-\ggrit'\'t'd h)· the aboYt' restrictions, the Respondents filed \Vrit Pt>ti·
tions in the Kerala f-ligh Court challenging tht' ,·alidity of the said orders
and contending that tht'ir right to botton1-tra\\'I cannot be takt'n a\\·ay
altogether ert'n for a limited peridd-(,f4.t da)·s in the year. the: High Court
allo"'t'd the \\'fit petitions and h~ld th~tt the c;ort'rnn1ent of Kt>rala \\'US not
competent to prohibit the boats of' the \\'rit petitiont'rs fron1 proceeding to
sea be~·ond the territorial waters. °The High Court declared that the
N1itification dated 25-6-1990 void in so far as it specified conditions in
regard to "any fishing vessel" \\"hich \\'as 'going beyond the tt>rritorial "·aters
for the purpose of fishing in such area. The State and the Association of
traditional fishermen appealed to the Supreme Court.
Allowing the appeals.
HELD: 1. Reading Entry 57 or List I and Entry 21 of List II togeth.er,.,
the legal position is that control and regulation of fishing and fisheries
within territorial waters is the exclusive province of the State, whereas
D beyond the territorial waters, it is the exclusive domain of the U~ion.
[208-H; 209-A]
E
F
2. The Legislature can create a conclusive presumption of law in
appropriate situations. So long as the Legislature acts within the sphere
allotted to it and does not infringe the provisions in Part III of the Con·
stitution or the constitutional limitations, the law made by it including the
conclusive presumption created by it cannot be questioned. The orders are
perfectly warranted by Section 4 of the Kerala Act. Since the said conclusive
presumption or law and the restrictions created by the First and Second
Orders respectively is created by the Government in exercise of the
statutory power conferred upon it, it has to answer the test or reasonable·
ness, for the added reason that it affects the fundamental right of the writ
petitioner guaranteed by Article 19(1) (g) of the Constitution- and according to them their right under Article 19(1)(di also. Therefore these restric·
tions imposed have to answer the test of reasonableness in clause (6) as
well as clause (5) of Article 19. Both the said clauses permit reasonable
G restrictions to be placed upon the respective guaranteed rights "in the
interests of general public." The restrictions contemplated by these clauses
can taken in a prohibition in appropriate cases. [220-G; 221-D-E; F·GJ
3. The specifications prescribed In the ·first Order are neither ar;
bitrary nor can it be said that they are based on no material. There was
H enough technical data in support of the said specifications in the shape of
S.M.T. FEDERATION .-. T.Il.O. ASSN.
205
reports of the expert committees and the opinions of technicall)' tiualifit>d
experts in the field, !\.lay be, there is some other material \\'hich tends to
support the case of bottom traw'lers but that makes no ditrerence to the
situation. It i.!i for the expert conimittees and the technical personnel to
evaluate all the factors and arrh·e at a particular conclusion. The c_;overn·
ntent is entitll'd to go b,y their conclusions/recommendations. (227· . .\, H]
.i. The (~o,-ernment of Kerala is ,,1· the opinion that in the interests of
preservation and availabilit,Y of the fish and to safeguard the econo1nic
interests of th~ weaker sections of the society Yiz. traditional fishermen, it
is necessary to ban bottom trawling within territorial \\'ater during the
period or about 44 days in a year. The Government thus had not acted
unreasonablJ'. It cannot be said that the temporary ban was not in the
interest or general public. Article 46 or the Constitution places an obligation upon the State to promote the economic interest of the weaker sections
of the society with special care. [228-D, E)
A
B
c
5. In the specific '·<~mditions obtaining in the Kerala State and the D
availability or fish notice~in the Joseplz Antony case the restrictions imposed by the impugned order are perfectly justified. The said restrictions
serve twin purposes, viz., assuring the livelihood of the traditional fishermen whose number runs into several lakhs and also to ensure that indiscriminate fishing is not indulged in by these trawl boats within the
territorial waters. [228-G)
E
6. There is no comparison between the capacity of mechanised boats
of the writ petitioners and the capacity or country craft. The country craft
belongs to the traditional sector and it is so recognised by the Kerala Act
and the impugned orders issued thereunder. [229-D]
7. The Government of Kerala is perfectly justilied in adopting the
attitude that the public interest cannot be determined only by looking at
F
the quantum of fish caught in a year. In other words, production alone
cannot be the basis for determining public interest. The Government is
perfectly Ju.stified in saying that it is under an obligation to protect the G
economic Interest of the traditional fishermen and to ensure that they are
not deprived of their slender means of livelihood. Whether one calls it
distributive justice or development with a human face, the ultimate truth
Is that the object of all development is the human being. [229-E, Fl
8. The State Government acting under Section 4 of the Kerala Act is H
206
SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R.
A
not only competent to Impose the aforesaid limited restriction/ban but also
to prescribe measures to ensure the said object and cannot be faulted on any
ground. It would be wrong to look at It as prohibiting 'Innocent passage'
assured by the first proviso to section 5 or as interfering with the freedom
of movement. The argument that If they Indulge in any violations, they can
be checked, caught and prosecuted Is no answer, having .regard to the vast
area involved. It Is not practicable. Since the reasonableness of the restrlc·
tion has to be judged on the touchstone of general public interest, whether
under clause (5) or clause (6) of Article 19 of the Constitution, the above
considerations (cost and practicability) are not Irrelevant. In the cir·
cumstances, the temporary ban cannot be said to be either excessive, dis·
proportionate of overbroad. The impugned orders cannot also be said to
travel beyond the purview or purpose of the Act. (230-A, E·, Fl
Narendra Kumar v. Union of India, AIR (1960) SC 430; State of
Madras v. V.G. Row, AIR (1952) SC 196 = (1952) SCR 597 and State of
Kera/av. Joseph Antony, (1994) 1 SCC 301, relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4222 of
1993.
• From the Judgment and Order dated 25.3.93 of the Kerala High
Court in O.P. No. 8238/93.
With
C.A. Nos. 4223-26 of 1993.
Altaf Ahmed, Additional Solicitor General, Prashant Bhushan, M.A.
Firoz, Sanjay Hegde, Ravi Kumar, Dileep Pillai, P.K. Pillai, N.Sudhakaran
and M.P. Vinod for the appearing parties.
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY, J. These appeals manifest the on-going con
'1ict of interest between traditional fishermen and mechanioed fishing boat
1perators in the territorial waters of Kerala and the attempts of the
:overnment to balance their contending demands. Fishing in the territorial
1aters and beyond has always been the major source of livelihood for
shcrmcn all along the coast of Kerala. Till the early seventies, fishing was
cmfined to traditional types of vessels, viz., catamarans, country craft and
S.M.T. FEDERATION v. T.B.O. ASSN. [JEEVAN REDDY, J.)
207
canoens. Thereafter, mechanised vessels using several types of fishing gear A
including bottom-trawling were introduced which soon gave rise to a
conflict between the traditional fishermen and the new class of mechanised
boat operators. "While these inputs (have) contributed to enhance the
n:arine fish production, they (have) also ·brought-forth a number of
resource~related and socio-economic problems necessitating serious B
management considerations. One such problem area is the fishing during
monsoon being practised bl the mechanised vessels in some of the States
along with west coast particularly in Kerala. This activitv which was started
in the seventies with the advancements in the operational capabilities of
mechanised vessels in the context of increasing demand for fish in the
internal and external markets, soon belied its advantages. It is perceived as
competing with the artisanal fisheries in the in-shore waters and fostering
resource degradation as bottom-trawling during monsoon pe1iod is apprehended to adversely affect the spawning populations and subsequent
recruitment" (From the preface to the CMFRI Bulletin 45 -· "Monsoon
Fisheries of the West Coast of India - Prospects, Problems and Management" published by Central Marine Fisheries Research Institute, a wing of D
the Indian Council of Agricultural Research). The present dispute is
confined to the permissibility of bottom-trawling during the -monsoon
months- a period of about six to eight weeks. The subject-matter of
challenge in the writ petitions filed by the operators of bottom-trawling
mechanised boats are two orders made by the Government of Kerala under
E
Section 4 of the Kerala Marine Fishing Regulation Act, 1980. By virtue of
these orders, not only the bottom-trawling was prohibited altogether within
territorial waters ('specified area') for period of forty four days - monsoon
period - in the year 1992, the boats of the writ petitioners were practically
confined to the sea-shore during the said period; they were not to stir out
c
F
to sea for the said period.
It is stated that most of the mechanised boats engaged in bottomtrawling are of Norwegian origin with a length of about 32 feet and fitted
with an engine of 48 to 60 HP. Bottom-trawling may broadly be described
as scraping the bottom of the sea for fish. It is obvious that deeper the sea, G
larger should be the fishing gear, which in turn calls for a bigger boat.
According to the State of Kerala, the boa\s of the writ petitioners (respondents in these appeals) can engage in bottom trawling only upto a depth
of 30-35 metres inasmuch as the lenght of wire rope required is five times
the depth (with a little extra for meeting emergency situations). The writ
petitioners (owners/operators of mechanised boats engaged in the bottom- H
208
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.
A
trawling) who are the contesting respondents in these appeals dispute this
assertion. They say that they are capable of bottom trawling in far deeper
waters. Yet another point of dispute is; according to the State of Kerala,
the depth of sea beyond territorial limits (22 Kms.) is 45 to 50 metres or
more, while according to the writ petitioners, the depth is less than 50
metres at many places beyond the territorial waters' limit. In short, the case
B of the State is that the boats of the Writ petitioners (of 32 feet length fitted
with an engine of 48 to 60HP and the fishing gear they carry) are capable
of bottom trawling only within the territoriai waters whereas the writ
petitioners say that they can bottom-trawl not only within but also beyond
the territorial waters. Basing on its assertions aforesaid, the Government
C of Kerala has issued the impugned orders. Yet another ground given by
the Government for supporting the said orders - which ground is strongly
supported by traditional fishermen - is that bottom-trawling during man·
soon months has extremely adverse effects on the growth and availability
of fish, in particular, on the spawning of the fish. According to them, the
gradual decrease in the fish haul is mainly the result of bottom-trawling
D during monsoon period. They say that bottom-trawling during the monsoon
months is seriously affecting the livelihood of the traditional fishermen.
They point out that for this very reason, this Court has upheld a complete
ban on use of purse seines, ring seines etc. by mechanised boat-operators
within territorial waters in the State of Kera/a v. Joseph Antony, (1994] 1
S.C.R. 301.
E
Rele~ant provisions of law and the Notifications:
Entry 57 of List-I of the Seventh Schedule to the Constitution
specifies "Fishing and fisheries beyond territorial waters" as a Union subF ject, whereas Entry 21 of List-II speaks of "Fisheries" as a State subject.
Though Entry 57 of List-I speaks both of 'fishing' and 'fisheries', they do
not appear to carry different meanings in the context relevant herein. The
word "fishery" is given the following meanings in the Compact Edition of
the Oxford English Dictionary : "(1) the business, occupation or industry
G of catching fish, or of taking other products of the sea or rivers from the
water. (2) a place or district where the fish is caught; fishing ground. (3) a
fishing establishment; coll. those who are engaged in fishing in a particular
place. (4) the right of fishing in certain works. (5) fish of different kinds."
Whichever meaning one adopts, it does not seem to convey any different
connotation than the expression "fishing". Therefore, nothing turns on the
H difference in language employed in Entry 57 of List-I and Entry 21 of
S.M.T. FEDERATION v. T.B.O. ASSN. (JEEV AN REDDY, J.]
209
List-II. Reading both the entries together, it follows that control and A
regulation of fishing and fisheries within territorial waters is the exclusive
province of the State, where beyond the territorial waters, it is the exclusive
domain of the Union.
With a view to provide for the regulation of fishing by fishing vessels
in the sea along the coast-line of the State, the Legislature of Kerala
enacted, in the year 1980, the Kerala Marine Fishing Regulation Act (Act
10 of 1981) - hereinafter referred to as the 'Kerala Act'. The Preamble to
the Act recites that "whereas it is necessary to provide for the regulation
of fishing by fishing vessels in the sea along the coast line of the State", it
was enacted. Section 2 defines certain expressions occurring in the Act.
Clause (h) of Section 2 defines the expression "specified area". It means
"such area in the sea along the entire coast line of the State, but not beyond
territorial waters, as may be specified by the Government, by notification
in the Gazette." Section 4 empowers the Government to regulate, restrict
or prohibit fishing in the territorial waters, while Section 5 prohibits the
B
c
use of fishing vessels in contravention of the orders made under Section 4.
D
Having regard to their crucial relevance, it is appropriate to set out
Sections 4 and 5 of the Act in their entirety :
114. Power to regulate, restrict Or prohibit certain matters within
specified area.- (1) The Government may, having regard to the
matters referred to in sub-section (2), by order notified in the
E
Gazette, 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
F
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 notification; or
( d) the use of such fishing gear in any specified are as may be G
prescribed.
(2) In making an order under sub-section (1), the Government
shall have regard to the following matters, namely;
(a) the need to protect the interests of different section of persons H
210
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.
A
engaged in fishing using traditional fishing craft such as
calamaram, country craft or canoe;
B
c
D
E
F
,
(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.
5: Prohibition of use of fishing vessel in contravention of any order
made under section 4:- No owner or master of a fishing vessel shall
use, or cause or allow to be used, such fishing vessel for fishing in
any manner which contravenes an order made under section 4:
Provided that nothing in such order shall be construed as preventing the passage of any fishing vessel from, or to, the shore, through
any specified area to, or from, any area other than a specified area
the purpose of fishing in such other area or for any other purpose:
Provided further that the passing of fishing vessel through any
specified area shall not in any manner cause any damage to any
fishing nets or tackles belonging to any person who engages in
fishing in the specified area by using any traditional fishing craft
~s catamararn, country craft or canoe.
Sub-section (1) of Section 4 specifies the ambit of the power while
sub-section (2) specifies the objectives to achieve which the power under
sub-section (1) is to be exercised. The objectives set out in the sub-section
(2) inter alia are : (a) the need to protect the interests of the different
sections of persons engaged in fishing particularly those engage\! in fishing
using traditional fishing craft such as catamaran, country craft or canoe;
(b) the need to conserve fish and to regulate fishing on a scientific basis;
and (c) the need to maintain law and order in the sea. The restrictions,
regulations and prohibitions that can be imposed by the State under
G sub-section (1) include specification of areas, specification of class and
length of fishing vessels and the number of vessels which can be used for
fishing in the specified area, specification of the species and of fishing
periods in a specified area. Section 5 says that no owner or master of the
fishing vessel shall use or allow the vessel to be used in any manner contrary
to the orders made under Section 4. The first proviso to Section 5 clarifies
H
that nothing in any order made under Section 4 shall be construed as
S.M.T. FEDERATION i·. T.B.O. ASSN. [JEEV AN REDDY, J.]
211
preventing the mere passage of any fishing vessel from or to the shore A
through any specified area for fishing beyond territorial waters. This
clarification is accompanied by a rider (second proviso) to the effect that
such passage shall not in any manner cause any damage to any fishing nets
or tackles being used by traditional fishermen within the territorial waters.
The purport of the two provisos, in short, is to provide for what may be
described as 'innocent passage' - if we can borrow the expression from a
different context - through the territorial waters. These pruvisos have to be
understood in view of the constitutional limitation upon the power of the
State Legislature explained hereinbefore. So far as the Parliament is concerned, it is admitted that it has made no law regulating or prohibiting
fishing beyond the territorial waters nor has the Union Government issued
any such orders in exercise of its executive power.
With a view to collect the relevant data, information and particulars
B
c
to enable them to make orders under Section 4 of the said Act, the
Government of Kerala appointed, in the year 1981, an expert committee
headed by Sri D. Babu Paul to enquire into the need for conservation of D
marine fishery resources and other allied matters. The committee submitted its report to the Government on July 21, 1982 but it appears that
its recommendations were not unanimous. Later, anotht;r expert committee
was appointed headed by Sri V.C.Kalawar. Based on the reports of these
committees, the Government of Kerala had been issuing various orders
from time to time under section 4(1) prohibiting bottom trawling during
the monsoon period. The judgment of the High Court (dated 31st July,
1992) sets out the various orders issued from the year 1988 onwards. (The
judgment also seats out the particulars of various writ petitions filed by
mechanised boat operators questioning those orders and the orders passed
thereon.) We do not think it necessary to refer to those orders inasmuch
as we are concerned herein with the orders relevant to the year 1992 alone.
We need notice only two orders, viz., G.O. (P) No. 31/90/F&PD dated 25th
June, 1990 (First Order) and G.O. (P) No. 26/92/F&PD dated 20th June,
1992 (Second Order) which were issued on the basis of yet another expert
committee report and certain other technical advice. While the First Order
E
F
is of a permanent nature, the Second Order is applicable only for the G
monsoon period (44 days) during the year, 1992. Each of these Orders is
accompanied by an Explanatory Note with the clarification that the Explanatory Note does not form part of the statutory notification but is
intended to indicate the general purport of the G.O.
The First Order along with its Explanatory Note reads as follows :
f
212
A
B
c
D
E
F
G
SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.
"S.R.O. No. 874/90.-- WHEREAS, there is need to preserve law
and order in the sea;
AND WHEREAS there is need to avoid accident and ensure
· safety of life and property of fishermen;
NOW, THEREFORE, in exercise of powers conferred by Section
4 of the Kerala Marine Fishing Regulation Act, 1980 (10 of 1981)
read with rule 3 of the Kerala Marine Fishing Regulation Rules,
1980, the Government of Kerala hereby restrict the use of the
specified area notified under G.0. (P) 136/84/PW, F&PD dated
the 30th November, 1984 in Kerala Gazette Extraordinary No.1055
dated the 3rd December, 1984, by imposing the following prerequisites for vessels going for bottom trawl fishing beyond territorial waters :-
(i) The engine fitted in the boat shall have a minimum power of
160HP and the hull shall have a length of not less than 40 feet.
(ii) The boat shall have a minimum length of 500m, wire rope in
the winch drum.
(iii) The boat shall carry on board sufficient number of life saving
appliances and fire appliances as stipulated under Section 435K
of the Merchant Shipping Act, 1958 (Central Act XLIV of 1958).
(iv) The Syrang and the Driver shall possess the competency
certificate issued by the Mercantile Marine Department/Post
Department.
(v) The boat shall carry on board articles of first aid and navigational aids such as Mariners Compass.
Explanatory Note
By order of the Governor,
M.S. JOSEPH
Secretary to Government.
(This note does not form part of this Notification but is intendei:l
to indicate its general purport).
H
Section 4(1) of the Kerala Marine Fishing Regulations Act, 1980
-
-
S.M.T. FEDERATION 1·. T.B.O. ASSN. [JEEVAN REDDY, J.J
213
empowers Government to regulate, restrict and prohibit the use
of any specified area for purpose of fishing. There have been a
number of complaints from among the traditional fishermen that
the vessel prohibited from conducting fishing in the territorial
waters arc actually fishing within the prohibited area. The
mechanised boats of less than 43 feet length are not capable of
conducting trawling beyond the territorial waters. Claims by the
contrary can only be false inasmuch as it has been established that
such boats cannot operate safely during the monsoon season
beyond the territorial waters without endangering human life.
Therefore, the Government have decided to prescribe certain
pre-requisites to trawl boats going to fishing beyond territorial
waters to ensure that bottom trawl fishing is not conducted in the
prohibited area.
This notification is intended to achieve the above purpose."
A
B
c
The Second Order (G.O. dated 20th June, 1992) along with its D
Explanatory Note reads thus :
"S.R.O. No. 743/92: WHEREAS the Government are convinced of
the need to protect the interest of different sections of persons
engaged in fishing, particularly those engaged in fishing using E
traditional fishing crafts such as catamarams, country crafts and
canoes:
AND WHEREAS it is imperative to maintain law and order in
the sea;
AND WHEREAS the Government consider that there is need to
conserve fish wealth ;
F
NOW, THEREFORE, in exercise of the powers conferred by
clause (d) of sub-section (1) of section 4 of the Kerala Marine
Fishing Regulation Act, 1980 (Act 10 of 1981) read with rule 4 of G
the Kerala Marine Fishing Regulation Rules, 1980, the Government of Kerala hereby prohibit bottom trawl in the sea along the
entire coast line of the State, not beyond the territorial waters
specified under notification G.0. (P) 136/84/PW&F&PD dated the
30th November, 1984 published as S.R.O. No. 1496/84 in the Kerala H
214
A
B
c
D
SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.
Gazette Extraordinary No. 1055, dated the 3rd December, 1984
for the period from 21st June, 1992 to the 3rd August, 1992.
Explanatory Note
By order of the Governor,
G. CHANDRAN
Special Secretary to Government
(This does not form part of the notification but is intended to
indicate its general purport).
Clause (4) of sub-section (1) of Section 4 of the Kerala Marine
Fishing Regulation Act, 1980 empowers Government to regulate,
restrict or prohibit the use of any fishing gear in any specified area
as may be prescribed. Sub-section (2) of Section 4 of the Act
prescribes the grounds for invoking the powers under Section 4.
There have been persistent demands from the traditional fishermen for ban on trawling during June, July, August on the ground
that trawling has been adversely affecting the conservation of fish
wealth and their share of earnings from fishing. Consequently,
E
there have also been clashes between the fishermen belonging to
traditional sector and mechanised sector leading to serious law and
order problems.
Therefore, the Government after considering the recommendations of expert committees in the matter decided to ban bottom
F
trawl specified in the rule 4 of the Kerala Marine Fishing Regulation Rules, 1980 in the entire coastal line of the State, not beyond
the territorial waters of the State during the monsoon period from
the 21st June, 1992 to the 3rd August, 1992 in the interest of
conservation of fish wealth and to avoid the possible law and order
G
problems in the Coastal area and in the area.
The notification is intended to achieve the above purpose."
It would be appropriate at this stage to notice the purport and effect
of the above two Orders. The First Order recites that it was issued in view
H of the "need to preserve law and order" and the "need to avoid accidents
--
S.M.T. FEDERATION v. T.B.0. ASSN. [JEEV AN REDDY,J.]
215
and ensure safety of life and property of fishermen". The Explanatory Note A
which throws light upon the objectives sought to be achieved by the G.O.
refers to a large number of complaints from the traditional fishermen that
the vessels prohibited from conducting fishing in territorial waters• were
actually fishing in the prohibited area. It then recites the Government's
opinion that the mechanised boats of less than 43 feet length are not B
capable of conducting bottom-trawling beyond the territorial waters, rejecting the contention to the contrary. The Explanatory Note further recites
that the Government has decided to prescribe certain pre-equisitos for
trawling boats for fishing beyond territorial waters to ensure that bottom
trawl fishing is not conducted in the prohibited area. The Notification accordingly imposes certain restrictions upon the length of the boat, horseC
power of the engine and the particulars of the fishing gear to be carried in
boats going for bottom-trawling beyond territorial waters. The requirements prescribed inter alia are :
(1) the Engine fitted in the boat shall have a minimum power of D
160HP and the hull shall have a length of not less than 43 feet.
(2) the boat shall have a minimum length of 500 metres wire-rope
in the winch drum.
Now, coming to the Second Order - which is valid and applicable E
only for a period of forty four days commencing from June 21, 1982 to
August 3, 1992 - it prohibits bottom-trawling altogether by any and all boats
during the said period in the territorial waters. The Explanatory Note says
that the said ban was imposed "in the interest of conservation of fish wealth
and to avoid the possible law and order problems in the coastal area and
the sea". It refers not only to the complaints of traditional fishermen that F
bottom-trawling during monsoon months is adversely affecting the conservation of fish wealth and is affecting their livelihood but also the recommendations in the report of the expert committees. The said
recommendations are stated to be the basis of the Order.
A reading of the two Notifications yields the following position :
(1) Bottom trawling is prohibited altogether for the aforesaid
period of 44 days in the year 1992 by one and all. During the
G
The reference obviously is to orders issued in the preceding years prohibiting botton1trawiing during monsoon n1onths within territorial waters
H
A
B
c
D
E
F
G
216
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.
I
remaining period of the year, bottom trawling is permitted by one
and all within the territorial waters.
I
(2) Only the boats having a minimum power of 160HP and a hull
length of not less than 43 feet (carrying a minimum length of 500
metres wire rope in the winch drum) shall alone be deemed to be
capable of conducting bottom trawling beyond territorial waters,
which means that boats with lesser horse power/or lesser length
shall be deemed to be meant/for bottom trawling only within (he
territorial waters. In short, the orders have created a conclusive
presumption of law that boats having lesser length, horse power
and fishing gear than prescribed shall be deemed to be meant for
bottom trawling within the territorial waters alone and are incapable of bottom trawling beyond the territorial waters. The
necessary consequence of this conclusive presumption of law
provided by the Order is that boats not answering the requirements
prescribed in the First Order shall not be permitted to leave the
coast during the aforesaid period of 44 days. They are confined to
and tied down to the sea-shore.
CONTENTIONS OF THE PARTIES BEFORE THE HIGH COURT AND
THE DECISION OF THE HIGH COURT.
Aggrieved by the above restrictions, the owners and operators or the
. mechanised boats engaged in bottom trawling (whose boats did not answer
the specifications prescribed in the First Order) approached the Kerala
High Court challenging the validity of the said Orders. Their contention
was that even though their boats are of lesser length then 43 feet and are
having an engine with less than 160HP, they are yet capable of engaging in
bottom-trawling beyond territorial waters and that, therefore, they should
be allowed to go beyond the territorial waters for the said purpose.
Reliance was placed in this behalf on the report of the advocate-commissioner in C.M.P. No. 10964 of 1990 in 0.P. No. 6092 of 1990 in the Kerala
High Court. The said report, according to the writ petitioners, established
that their boats are capable of bottom-trawling even beyond the territorial
waters. They disputed the underlying assumption that the depth of sea
beyond territorial waters is more than 50 meters. In several places, they
said, the depth of sea beyond the territorial waters (22 Kms. from the sea
H coast) is between 35 to 50 metres, wherein their boats are fully and
S.M.T.FEDERATION v. T.B.0.ASSN.[JEEVANREDDY,J.]
217
perfectly capable of bottom-trawling. They submitted that the requirements A
specified in the First Order are arbitrary, unsupported by any relevant data
and have been prescribed under the pressure of and with a view to mollify
the traditional fishermen whose number is very large compared to the
number of the owners/operators of the mechanised boats. They submitted
that their right to go beyond the. territorial waters (right of 'innocent B
passage') cannot be taken away always altogether even for the limited
period of 44 days in the year. According to them, they were interested
mainly in 'karikkadi' (prawns) and this particular type of prawns is available only during the monsoon period beyond territorial waters. If they are
not allowed to fish during the monsoon period, these prawans float away
and will not be available thereafter. Their main reliance was upon the two C
provisos to Section 5 of the Kerala Act. They pointed out that neither the
Parliament nor the Central Government - who alone are competent to
regulate the fishing beyond territorial waters - have imposed any sort of
restriction on bottom trawling. They submitted that their right to fish
(bottom-trawl) beyond the territorial waters cannot be defeated by the D
State Legislature and/or its delegate under the guise of prescribing the
aforesaid particulars. Article 19(1)(d), they submitted, guaranteed to them
the right to move freely through the territory of India (which includes the
territorial waters). The writ petition was opposed by the Government of
Kerala as also by the Association of traditional fishermen. They submitted
that the restrictions prescribed are conceived in the interest of maintenance E
of law and order within the territorial waters as also to protect and preserve
the fish in the larger interest of all the fishermen and the consuming public.
The requirements prescribed in the First Order, they submitted, are
designed to prevent bottom-trawling by mechanised boats within territorial
waters under the guise of going out to sea beyond territorial waters. It is F
only a measure to prevent abuse of the restriction placed by the Second
Order (during 1992 monsoon period) - and similar orders that may be
passed for the future years - they submitted.
The Kerala High Court upheld the contention of the writ petitioners G
(mechanised boat-owners) and held that the Government of Kerala was
not competent to prohibit the boats of the writ petitioners from proceeding
to sea beyond the territorial waters. The High Court declared that the
"Notification dated June 25, 1990 is void in so far as it specifies conditions
in regard to 'any fishing vessel' which is going beyond the territorial waters
for the purposes of fishing in such areas". The correctness of the said order H
218
SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.
A
is questioned in these appeals both by the Government of Kerala as well
as by the Association of traditional fishermen, "Kerala Swathanthra Malaya
Thozhilali Federation".
QUESTION ARISING FOR CONSIDERATION:
B
Having regard to the contentions urged before the High Court and
before us, the following questions arise for consideration in these appeals:
(1) Whether the Government of Kerala was competent, acting under
Section 4 of the Kerala Act, to create a conclusive presumption of law to
the effect that a boat not satisfying the requirements prescribed in the
C order dated June 25, 1990 (First Order) is not capable of bottom-trawling
beyond the territorial waters of Ker ala?
{2) Whether the First Order is arbitrary and discriminatory? In other
words, whether there is no relevant material to support the requirements
D prescribed in the First Order and whether the said Order brings about an
impermissible discrimination between the bottom-trawlers and other fishing vessels?
•
(3) In case, Question No. 1 is answered in favour of the State,
whether such a conclusive presumption can be made the basis for confining
E the bottom-trawlers to the sea-shore for a period of forty four days
specified in the Second Order (Order dated 20th June, 1992) - or by similar
orders that may be issued for the ensuing years? Whether such confinement
constitutes an unreasonable restriction upon the right guaranteed to the
owners/operators of the bottom-trawlers by Article 19(1)(d) of the Con·
F
stitution of India?
(4) Whether the First Order is inconsistent with the first proviso to
Section 5 of the Kerala Act? Whether the said order trenches upon the
field reserved to the Union by Entry 57 of List-I?
Before we deal with the questions aforesaid, it is necessary to refer
G briefly to the facts and reasoning in Joseph Antony, a decision rendered by
a Bench of this court comprising P.B. Sawant and R.M. Sahai, JJ. in a
dispute of a like nature. That was also a dispute between traditional
fishermen and mechanised boat-operators with this difference that the
mechanised boats concerned therein were not engaged in bottom-trawling
H but were using sophisticated nets like purse seines, ring seines, pelagic
S.M.T. FEDERATION v. T.B.0. ASSN. [JEEV AN REDDY, J.]
219
trawl and mid-water trawl gears. An average purse seine is said to be 400 A
meters in circumference, covering an area of more than one hectare. It is
used mainly for gathering the pelagic (surface) fish. It could and did haul '
in 600 to 800 tonnes of fish per annum, compared to five tonnes by a
country craft. On account of the activities of the said mechanised boats,
the fish haul by traditional fishermen came down drastically, seriously B
affecting their livelihood. The judgment of this court sets out the particulars
of the fall in the annual catch by traditional fishermen and the consequent
misery caused to them and their families. Naturally, therefore, it gave rise
to acute discontent among them. Basing on the expert committee reports,
the Government of Kerala issued two Notifications on 30th November,
1984 under the provisions of the Kerala Act. Under one Notification, the C
Government specified the area along the entire coast line of the State, but
not beyond the territorial waters, as the "specified area" for the purpose of
clause (d) of sub- section (1) of section 4 of the Kerala Act. Under the
other Notification, the State Government declared that since they were
convinced of the need to protect the interests of the persons engaged in D
fiohing using traditional fishing crafts such as catamarans, country crafts
and canoes in the territorial waters of the State and further because there
was need to preserve law and order in the territorial waters, the use of
purse seine, ring seine, pelagic and mid-water trawl gear for fishing in the
territorial waters along the entire coast line of the State shall stand
prohibited. The validity of the said Notification was questioned by E
mechanised boat operators in"the Kerala High Court which upheld their
complaint partly.