INDIAN TRAWLERS ASSOCIATION ERNAKULAM Vs. STATE OF KERALA

JUDGEMENT

(1.) It is agreed that the question arises for consideration in all these Writ Petitions are the same and that relates to the constitutional validity of S.4 of the Kerala Fishermen's Welfare Fund Act, 1985 (for short 'the Act'). If S.4 of the Act is declared unconstitutional, the other provisions of the Act, being integrally connected with S.4, will not survive. Therefore, the sole question is whether the challenge against S.4 of the Act can be upheld. Even though there are minor variations in facts in these petitions, it is agreed that for the purpose of disposal of these cases, the facts in O.P. 7787/88 alone need be referred to. That means, the disposal of O.P. 7787/88 will have the effect of disposal of all the cases in this batch of cases.

(2.) The petitioner is engaged in fishing operations using mechanised boats of different tonnage. Petitioner is owner of mechanised fishing boats and in that capacity they are owner of nets of the boats as well. He is also a dealer in fish. Hence, it is submitted that even though petitioner is a boat owner, he has to pay contribution in different capacities as an owner of fishing boats, owner of fishing nets, as a dealer in fish and as a fisherman catching fish etc. The fund so collected from the petitioner at varying rates will not be used for the benefit of the petitioner or for the benefit of the employees of the petitioner. Hence, the short question posed in all these petitions is S.4 of the Act cannot be justified under any of the provisions of the Constitution, for if it is to be justified as a tax, then there should be a specific taxing entry giving power to levy and collect tax. Without a specific power for taxation, the State cannot impose any tax on the petitioner. If it is to be justified as a fee, then it has to come under legislative entry relating to fee. But, then, there must be quid pro-quo for collection of fee and, there being no quid pro-quo, it is submitted that the collection cannot be justified as a fee also. If the Government do not purport to justify the Act as a fee S.4 of the Act will have to be struck down. On the other hand, if it is to be considered as a social welfare measure introduced for the welfare of the employees, then as the employees of the petitioners are not benefitted at all, the Act cannot be justified under any of the entries in the Concurrent List also. Hence, the Act cannot be justified under any of the entries in List II or List III of the VII Schedule of the Constitution and, therefore, the Act has to be struck clown as unconstitutional is the contention of the petitioners.

(3.) Before examining the contentions in details, I will refer to the scheme of the Act itself. The Kerala Fishermen Welfare Fund Act, 1985 was enacted for promoting the Welfare of Fishermen in the State of Kerala. S.3 of the Act provides that the Government may, by notification in the official gazette, frame a scheme to be called as Kerala Fishermen Welfare Fund Scheme for the welfare of fishermen and the fund shall be established after framing of the scheme in accordance with the provisions of the Act. S.3 provides that the fund shall be credited with the contribution prescribed in S.4, fee levied under the scheme, damages realised under S.21, grants or loans or advances made by the Government of India or the State Government, voluntary donations, penalty levied under the provisions of the Kerala Marine Fishing Regulation Act, 1980, and any amount raised by the Board from other sources to augment the resources of the Board. Sub-section (3) of S.3 says that the fund shall vest in and be administered by the Board. Sub-section (4) of S.3 is most important and it enumerates the purposes for which the fund may be utilised. The fund is to be utilised for providing distress relief to fishermen in times of natural calamities, for payment of financial assistances to fishermen who suffer permanent or temporary disablement; for payment of loan/grant to fishermen to meet the expenses for the marriage of children or expenses in connection with disease or death of dependants or any unexpected expenditure or the day to day expenditure during loan months; to provide for the fishermen and the members of their families education, vocational training and part-time employment, social education centres including reading rooms and libraries, sports and games and medical facilities, nutritious food for children and employment opportunities to the handicapped; for payment of financial assistance to fishermen who suffer loss of houses or fishing implements or any other damage due to natural calamities or other unexpected causes; to provide old age assistance to fishermen and for the implementation of any other purpose specified in the scheme. Other purposes are also specified in the scheme. Under sub-section (5) of S.3, every fisherman who is a member of a Fishermen's Welfare Society constituted under S.4 of the Kerala Fishermen Welfare Societies Act shall be a member of the fund. S.4 of the Kerala Fishermen's Welfare Societies Act provides for constitution of Fishermen's Welfare Societies having perpetual succession and common seal and every fisherman who permanently reside in the fisheries village or carries on fishing operations from or within the fisheries village and who has attained 18 years of age shall be deemed to be a member of the society. Pursuant to S.5 (2) of the Kerala Fishermen's Welfare Societies Act, 1980 rules have been framed and the Kerala Government has notified 225 villages as fisheries villages and formed welfare societies. The entire coastal area of the State has been formed into 225 villages and all the marine fishermen in the area are included in the welfare societies. The fishermen employed in the mechanised boats owned by the petitioner are also residents of the marine villages listed in 225 villages. The main contribution for the fund is provided for in S.4 of the Act against which the main attack of the petitioner is directed to. The fishermen have to contribute 3 per cent of the value of the fish caught by him during a year or three per cent of the wages earned by him in a year. A dealer has to contribute every year to the fund one per cent of his sale proceeds in the year. The owner of a fishing vessel has to contribute every year an amount calculated at varying rates as prescribed in the Act. For traditional crafts like catamaran (non motorised), catamaran (motorised), country craft upto 9 metre size (non motorised), country craft upto 9 metre size (motorised) country craft above 9 metre size (non motorised), country craft of above 9 metre size (motorised), mechanised boats below 15 GRT, mechanised boats of 15 GRT and above but below 25 GRT, mechanised boats of 25 GRT and above upto 35 GRT and mechanised boats above 35 GRT, different rates have been prescribed in the Act. The owner of a fishing net shall contribute to the fund one rupee per net per month for nine months every year. The owner of a prawn filtration area or a fish farm has to contribute every year to the fund two per cent of the value. of the prawn and other fish caught from the prawn filtration area or the fish farm during the year. A person who employs a fisherman in a fishing vessel shall be liable to pay under sub-section (7) the contribution payable by that fishermen after deducting that amount from the wages or other remuneration due to such fisherman.