ABDUL KADIR MASHOOD Vs. ABDUL ALI HUCK

JUDGEMENT

(1.) These appeals are from the order passed by our learned brother Justice Joseph in O.P. No. 25 of 1956. That petition was for quashing the Government Order No. Fd. 13-8204/53/Fd. dated 17-12-1953 and a rule of the same date made by the Government under the Travancore-Cochin Fisheries Act XXXIV of 1950, whereby fishing with the aid of certain types of nets, viz., Netholivala and Chanavala were prohibited up to a distance of one mile from the sea front. The order and rule have been declared ultra vires the powers of the Government under the Fisheries Act and were quashed. A.S. No. 36 of 1956 [K] is by the State and A.S. No. 321 of 1956 (E) by one who intervened in the case to support the rule, he being a member of the class of fishermen to safeguard whose interests the impugned order and rule were passed.

(2.) A brief recital of the events culminating in the passing of the order by the Government will be of help in understanding the point in issue in this case. In the year 1124. M.E. certain fishermen from the coastal areas of Chirayinkil Taluk who were interested in the use of a big type of fishing net known as Kambavala moved the District Magistrate, Trivandrum for prohibiting the use of smaller types of nets in the coastal waters in their locality. On 1-8-1124 the District Magistrate passed an order under S.142 of the Code of Criminal Procedure of Travancore-Cochin corresponding to S.144 of the Indian Code prohibiting the use of such nets in the area. The validity of the order was challenged in revision and the High Court of Travancore-Cochin quashed the order of the District Magistrate. However the users of Kambavala continued to petition the Government for prohibiting the use of Netholivala. After the High Court order was passed they presented a petition before the Government on 23-2-1953 praying that immediate steps be taken to remove the interference caused by the users of Netholivala. The Government called for a report on the matter from the Director of Fisheries. The Director of Fisheries reported that Netholivala was not a new contrivance, that it was not detrimental to other nets and that he could not understand how its use could be prohibited, when other drift nets like Chanavala were in use along the coast. It was further stated that there was no justification for banning the use of Netholivala on the ground that only two or three men were needed to operate it whereas a large number of persons were required for catching fish with Kambavala and that it did not seem right to deprive the poor people [fishmen who use Netholivala] of their livelihood to protect and encourage the rich net owners [owners of Kambavala]. However he concluded the report by stating that since Kambavala has to be operated from the shore unlike Netholivala which can be taken to any part of the sea the only restriction that could be placed on the use of Netholivala on this account was to impose a limit on the distance from the shore where it could be operated. It was on the basis of this report that the impugned rule and order were passed by the Government.

(3.) The rule in question reads as follows:-