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Divakaran Vs. Dy. Director of Fisheries and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 3809 of 1973
Judge
Reported inAIR1975Ker9
ActsConstitution of India - Article 226; Travancore & Cochin Fisheries Act, 1950 - Sections 4
AppellantDivakaran
RespondentDy. Director of Fisheries and ors.
Appellant Advocate P.E. Muhammed Mustaffe, Adv.
Respondent Advocate S.R. Sivaraman, Adv.
Cases ReferredPaul v. State
Excerpt:
.....right which is given us is to look and see if the minister or the local planning authority has made an order which is not a good order, and, if we can find that out, then we can take steps whereby this building may possibly be stopped. i find it difficult to accept the suggestion that considerations like these approach anything like a 'judicial' consideration of the matter, based on 'rights of parties''9. the learned judge also referred to a decision of the supreme court in nagar rice and flour mills v. : even if it be assumed that the previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, we fail to appreciate what grievance the respondents may raise against the grant of permission by the authority permitting the installation of..........getting enforced the law. therefore, i would direct respondents 1 and 2 to remove the unlicensed fishing stakes as expeditiously as possible. this will not stand in the way of issuance of fresh licences in accordance with law.4. in regard to the prayer for a writ as against respondents 3 to 36, i would reject the petitioner's prayer. in a proceeding under article 226 this court cannot issue writs or directions as against private individuals. here no question of a breach of public of statutory duty arises. a writ of prohibition asked for is also most inappropriate. such a writ is issued only to judicial or quasi-judicial athorities in respect of proceedings before them. not that the prayer for an inappropriate writ as such has led to the rejection of the petitioner's prayer as against.....
Judgment:
ORDER

Chandrasekhara Menon, J.

1. In this writ petition, the petitioner, styling himself as a convener of a fishermen's Association has aksed for a writ of mandamus to command the 1st and 2nd respondents to remove all the unlicensed fishing stakes now being operated by respondents 3 to 36 in and around the area of the Puthenpadu Oonnies of the petitioner and his sangham in the Puramboke river in Sy. No. 845 in the Mulavukadu village, Kanayannur taluk; also for writ of prohibition for restraining respondents 3 to 36, private individuals from conducting unauthorised fishing operations by means of unlicensed stake nets. His contention is that in the particular locality, the members of the Vala Community of the place have got the right of fishing which could not in any way be obstructed or interfered with by others. Their stakes are licensed in accordance with the provisions of the Travoncore-Cochin Fisheries Act and the Rules framed thereunder. The complaint is that in spite of repeated representations the authorities concerned are not taking any steps to prevent unauthorised fishing operations conducted by persons coming from outside like respondents 3 to 36 who have not obtained any license to put up fishing stake nets in the area.

2. In the counter affidavit filed by the 1st respondent, the Deputy Director of Fisheries, it is admitted that unauthorised stakes are being planted in the area. It is statedthat though unauthorised stakes are being removed, planting of such stakes in various canals in the district are being resorted to hi an organised manner with the active support of various political parties. The removal of stakes could be done only with the active support of local fishermen which involves considerable expenses. The local fishermen, it is said show reluctance to attend to the work on daily wages basis as they apprehend clashes with the rival groups indulging in unauthorised fishing. The 1st respondent, it a said has asked for special funds, which request is now pending with the Government. It is also submitted that respondents one and two are taking expeditious steps as they are capable of for removal of unauthorised stakes.

3. It is rather unfortunate that respondents 1 and 2 are feeling a sort of helplessness in the matter of removal of the unauthorised stakes. No doubt in the circumstances it may not be their fault. They should impress upon the higher authorities the urgent necessity for funds and get them, if paucity of funds stands in their way of getting enforced the law. Therefore, I would direct respondents 1 and 2 to remove the unlicensed fishing stakes as expeditiously as possible. This will not stand in the way of issuance of fresh licences in accordance with law.

4. In regard to the prayer for a writ as against respondents 3 to 36, I would reject the petitioner's prayer. In a proceeding under Article 226 this court cannot issue writs or directions as against private individuals. Here no question of a breach of public OF statutory duty arises. A writ of prohibition asked for is also most inappropriate. Such a writ is issued only to judicial or quasi-judicial athorities in respect of proceedings before them. Not that the prayer for an inappropriate writ as such has led to the rejection of the petitioner's prayer as against respondents 3 to 36; it is the more fundamental defect pointed out earlier.

5. I might state here that Sri Mathews P. Mathew, learned counsel appearing for some of the respondents amongst 3 to 36, very strongly contended that the petitioner has no locus standi to file such a writ petition because, (1) the petition is filed OB behalf of an association which is not registered; and (2) the petitioner has no right to challenge the fishing operations of respondents 3 to 36 even if they are unauthorised.

6. In regard to the first point I might state that it is abundantly clear from the petition itself that the petitioner, whether as a member of the Sangham or as a member of the community which owns the Sree Subra-monia Temple, has a personal interest also in the licensed fishing stakes put. Therefore, as a person aggrieved by the unlicensed fishing he can come in.

7. In regard to the second question that certainly raises a larger question, Mr. Mathew laid considerable stress on a decision of Mr. Justice Balakrishna Eradi in Dr. Madha-van v. State of Kerala, 1973 Ker LJ 900. The facts of the case relevant here were that on an application by the Commissioner, Can-nanore Municipality that the theatre building put up by one of the parties to the said case (5th respondent) may be exempted from the operation of Rule 19 (a) of the Kerala Places of Public Resort Act, 1963, since it did not have the requisite open space of 45 metres in width all around the building, government passed order granting such exemption. This was questioned by the petitioner in that case. Mr. Justice Eradi said:

'Now coming to the challenge made against Ex. P3, the petitioner cannot, in my view, be regarded as a person aggrieved by the said order, in the eye of law, so as to entitle him to call in question the legality of the Government sanction in granting exemption to the 5th respondent's theatre in the exercise of the power conferred by the proviso to Rule 19 (a) of the Kerala Places of Public Resort Rules, 1965. An examination of the provisions of the Kerala Places of Public Resort Act discloses that the object and intend-ment underlying the said enactment is only to impose certain restrictions in regard to the user of enclosed places or buildings as places of public resort or entertainment with a view to ensure that the health and the safety of the public are duly safeguarded. It cannot be said that any of the provisions of the Act are intended to confer on a neighbouring owner like the petitioner any right which he does not otherwise possess under the ordinary law of this country. It may be that in case the 5th respondent wants to use the site or the building constructed therein as a place of public resort he has to comply with the conditions imposed under the Kerala Places of Public Resort Act and the Rules. If he fails to do so, he will be exposing himself to the penal provisions contained in the said statute and the Rules. The petitioner, who is the owner of the adjoining property does not get any right to object against the user by the 5th respondent of his premises as a place of public resort on the ground that the 5th respondent is using the said premises in violation of the provisions of the aforementioned enactment or the rules or that the grant of licence or permission to the 5th respondent has been effected by the competent authority otherwise than in strict conformity with the provisions of the statute.'

8. Two decisions of the English courts were cited in support of the view the learned Judge has taken -- Buxton v. Minister of Housing and Local Govt., (1961-1 QB 278) and Gregory v. Camden London Borough Council, (1966-1 WLR 899). Both related to permission granted to owners of land foe development of the lands in question under the Town and Country Planning Act, 1947 and right of neighbouring owners to contest the validity of such permission in courts. In the first case Salmon, J., held:

'Before the Town and Country Planning Legislation any land owner was free to develop his land as he liked, provided he did not infringe the common law. No adjoining owner had any right which he could enforce in the courts hi respect of such development unless he could show that it constituted a nuisance or trespass or the like. The scheme of the Town and Country Planning Legislation, in my judgment, a to restrict development for the benefit of the public at large and not to confer new rights on any individual members of the public, whether they live close to or far from the proposed development.'

In the other case following the earlier decision Paull, J., observed:

'In this case, as I see it, the plaintiffs are saying:--

In effect we now have a right which we should not have had but for the passing of the Town and Country Planning Acts. Before those Acts we could have taken no steps whatsoever with regard to this building. Now we have a right. The right which is given us is to look and see if the Minister or the local planning authority has made an order which is not a good order, and, if we can find that out, then we can take steps whereby this building may possibly be stopped. .....I think that the real answer isthat what is taking place on this land behind Nos. 51 and 55 is something as to which, as between the plaintiffs and the trustees, there are no legal rights whatsoever, and there being no legal rights between those parties, the plaintiffs cannot come here and say: But I want to interfere by getting at you through a third party, whose permission you must get before you can build this building.....

My conclusion, therefore, is that on this point of law the defendants are right. There is no status for the plaintiffs to come forward and claim a declaration, which is what they are doing.....'

Eradi, J., also quoted with approval the following passage of Varadachariar, J., in Ghulam Mohideen v. Dist. Magistrate, Chingleput, AIR 1934 Mad 545 considering the scope of an identically worded provision--clause (b) of Section 7 of the Madras Places of Public Resort Act, 2 of 1888:

'Though Sub-clause (b), Section 7 directs them to consider whether any objection to the grant of the licence arises from the situation or ownership, of the place or building or the purpose proposed, the main consideration with reference to which the power is to be exercised is that of public safety; and for this purpose, Section 6 empowers the licensing authority to inspect the locality call upon the applicant to make additions or alterations in the material or arrangement of the building or in the precautions to be taken for the safely of the public to be assembled therein. Similarly, Section 9, clause (c) provides that the authority granting a licence may revoke or suspend the same when it has reason to believethat the place or building can no longer be safely used for the purpose for which the licence was granted. I find it difficult to accept the suggestion that considerations like these approach anything like a 'judicial' consideration of the matter, based on 'rights of parties''.

9. The learned Judge also referred to a decision of the Supreme Court in Nagar Rice and Flour Mills v. Teekappa Gowda, 1970-1 SCWR 627 = (AIR 1971 SC 246), where the court had considered the scope of Sections 5 and 8 of the Rice Milling Industry (Regulation) Act, 1958 with particular reference to the questions as to whether the owner of an existing rice mill in the locality has a right to challenge the permission granted by the government to another party to shift his rice mill to the particular locality. The following observations in that case were quoted by Eradi, J.:

'Even if it be assumed that the previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, we fail to appreciate what grievance the respondents may raise against the grant of permission by the authority permitting the installation of machinery on a new site. The right to carry on business being a fundamental right under Article 19(1)(g) of the Constitution, its exercise is subject only to the restrictions imposed by law in the interests of the general public under Article 19(6)(i).

Section 8 (3) (c) is merely regulatory; if it is not complied with the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice mill of the appellants be regarded as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Article 19(6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondent was infringed.' (underlining is mine).

10. In the case before Eradi, J., the question was whether a neighbouring owner has got the right which he does not otherwise possess under the ordinary law of the land to object to the user of a place or building as places of public resort or entertainment on the ground that user was allowed in violation of the provision of the statute. The learnedJudge examining the object and intendment of the statute said that such object is only to impose certain restrictions in regard to the user of enclosed places or buildings as places of public resort or entertainment with a view to ensure that the health and the safety of the public are duly safeguarded. It might be noted that the learned Judge positively overruled a contention in that case that the framers of the Act intended that a licence is not to be issued under the enactment in case any reasonable objection is raised by adjoining owners.

11. Let us examine the provisions of the Travancore-Cochin Fisheries Act. Section 4 of the Act enables the government to make rules which may prohibit all fishing in any specified water except under a license granted by government and in accordance with such terms and conditions as may be specified therein. Section 9 of the Act empowers the government to make rules to determine the officers by whom, the form in which and the terms and conditions subject to which any license shall be granted. Section 6 of the Act provides that penalty would be imposed for breach of the rules made under Section 4. In certain circumstances any police officer could arrest without a warrant a person committing any breach of the provisions of the Act or Rules made thereunder. It is not disputed in this case that as per the Rules in force license is required for the use of the fishing stakes in the area. The petitioner has stated that the Rules originally framed under the Cochin Fisheries Act continue in force in the area. The question that arises is whether a license holder can object to fishing by a non-license holder. According to me the principle pointed out by Eradi, J., in the case referred to above may not be applicable here. I may refer in this connection to the portion I have underlined in the passage appearing in the Supreme Court case which Eradi, J., has quoted. What is stated there is that a person cannot claim, independently of a restriction imposed by the State by a law enacted in the interests of the general public and as is permissible, that another person shall not carry on business or trade so as to affect his trade or business. In the Supreme Court case concerned the party concerned in whose favour the State Government had granted permission to shift his rice mill to another locality where there was an existing rice mill had complied with the statutory requirements for carrying on rice milling operations in the new site. The only contention raised was no previous permission as required under Section 8 (3) (c) of the Rice Milling Industry (Regulation) Act had been obtained. The Supreme Court said that Section 8 (3) (c) is regulatory. It was further said that assuming no previous permission was obtained, the existing rice mill owner would have no locus standi for challenging the grant of permission, because no right vested in the respondents was infringed. In that case thelearned Judges overruled the plea raised that in granting permission under Section 8 (3) (c) the authority was bound to take into account matters which govern the issue of a permit under Section 5 (4) of the Rice Milling Industry (Regulation) Act. It was held that there is no statutory obligation to take into consideration the matters prescribed by subsection (4) of Section 5 in granting permission under Section 8 (3) (c). The Supreme Court decision does not run counter to the principle that where a person has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered, the court can step in to redress the grievance of the person concerned. This rule enunciated in Rex v. Richmond Confirming Authority, Howitt, Ex parte reported in (1921-1 KB 248) has been accepted and followed by this court in Paul v. State, 1966 Ker LT 1173 = (AIR 1967 Ker 71). There Govindan Nair, J. (as he then was) said:

'Whenever an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered, is adversely affected, the person whose interest is so affected will have a right to insist that the law should be properly administered. So a writ application may lie whenever there has been an infringement of such an interest because the statute has not been followed.'

This is clearly applicable in this case. Therefore, in deciding this case I have overruled the contention of Mr. Mathew that the petitioner has no locus standi.

12. The original petition is disposed as above. There will be no order as to costs.


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