Madras High Court
Unknown vs The Union Of India on 23 June, 2016
Bench: Sanjay Kishan Kaul, R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23.06.2016 Coram: The Honourable Mr.SANJAY KISHAN KAUL, CHIEF JUSTICE and The Honourable Mr.Justice R.MAHADEVAN W.P. SR. No.72171 of 2016 Fisherman Care, registered Association, bearing S.L.No.386 of 2010 rep. by its President, L.T.A.Peter Rayan, No.6, Nagalakshmi Salai, Tiruchandur Nagar, Old Pallavaram, Chennai 600 117. ... Petitioner Versus 1.The Union of India, rep. by the Secretary, Ministry of External Affairs, New Delhi. 2.Union of India, rep. by the Secretary, Ministry of Law and Justice, New Delhi. 3.The Chief Secretary to Government of Tamil Nadu, Fort St.George, Chennai 600 009. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issue of a writ of Mandamus, directing the 1st and 2nd respondents to give effect/enforce Article 6 of the 1974 Agreement entered between India and Sri Lanka in letter and spirit by taking diplomatic steps and thereby delete the relevant portion of the letter dated 23.03.1976 which takes away the traditional fishing rights of Indian Fisherman to fish in the historic waters between India and Sri Lanka through diplomatic channel. For Petitioner ::: Mr.V.Ragavachari O R D E R
(Order of the Court was delivered by The Hon'ble Chief Justice) The writ petition has been placed before us on the issue of maintainability.
2. The petitioner claims to be a registered association looking to the interests of the fishermen in State of Tamil Nadu. A writ of mandamus is sought against the Union of India to give effect/enforce Article 6 of the 1974 Agreement entered into between India and Sri Lanka in letter and spirit and delete the relevant provisions of the letter dated 23.03.1976, which has taken away traditional fishing rights of the Indian Fishermen in the historic waters between India and Srilanka.
3. Learned counsel for the petitioner seeks to contend so by reference to the agreement between the Government of Tamil Nadu and Government of Sri Lanka ''On the Boundary in Historic Waters Between the Two Countries and Related Matters'' dated 26.06.1974 at New Delhi and 28.06.1974 at Colombo.
4. Articles 5 and 6 of the said Agreement read as under:
''5. Subject to the foregoing Indian fishermen and pilgrims will enjoy access to visit Kachativu as hitherto, and will no be required by Sri Lanka to obtain travel documents or visas for these purposes.
6.The vessels of India and Sri Lanka will enjoy in each other's water such rights as they have traditionally enjoyed therein.''
5. The submission of the learned counsel for the petitioner thus is that the aforesaid Articles of the Agreement permit the traditional rights and thus in a sense, license has been given to Indian Fishermen to go into Sri Lankan waters and carry out their fishing activities.
6. The aforesaid is however followed by the ''Exchange of Letters between the Government of India and Government of Sri Lanka on the Wedge Bank Fisheries, New Delhi dated 23.03.1976, which in fact, provide for fishing vessels of Indian Fishermen, not to engage in fishing in the historic waters, the territorial sea and the exclusive economic zone of Sri Lanka, nor shall the fishing vessels or fishermen of Sri Lanka engage in fishing in the historic waters, the territorial sea and the exclusive economic zone of India.
7. The impact of the aforesaid is that both countries decided to preserve their rights exclusively in their respective territorial seas.
8. It is trite to say that sea wealth forms an important part of today's economics and thus, countries have become more conscious of it. What has transpired is also now 40 years old.
9. In a nutshell, the real grievance of the petitioner is the detention of the Indian fishermen by the Sri Lankan Navy and that occurrence being there periodically. Once again, this issue repeatedly gets raised both at the local level and by Government to Government exchange for release of the fishermen. The petitioner wants a permanent solution to this problem.
10. In the earlier writ petition Nos.25524 and 25525 of 2013, once again relating to the issue of the Indian Fishermen from Tamil Nadu crossing the international maritime boundary line, the subject matter was same. The parties were same and counsels were also same. On 05.08.2015, this Court passed the following order :
''The issue at hand dealing with the rights of fishing in the water between India and Sri Lanka in terms of the 1974 Agreement between India and Sri Lanka, brooks no easy solution.
2.The State Government being the third respondent has one stand which wishes to favour the petitioner/ fisherman, while the stand of the Union of India is different based on the plea of International Maritime Boundary Line.
3. It is pointed out that the Hon'ble Supreme Court is already in seisin of the dispute in two writ petitions filed under Article 32 of the Constitution of India being Writ Petition (Civil) Nos.561 of 2007 and 430 of 2013. In fact, the lis prays therein to direct the Union of India to annexe ''Katchatheevu'' island.
4.Learned counsel appearing for the petitioner submits that he is conscious of the aforesaid issue pending before the Hon'ble Supreme Court and thus does not seek to go so far as that, but prays that some practicable solution may be found while looking into the grievances of the fishermen. Such an issue, it is submitted, is capable of resolution by taking up the matter diplomatically, so that the fishermen do not languish in Sri Lankan jails for long period of time even if they transgressed the maritime boundary line inadvertently.
5.The learned counsel for the Union of India states that every endeavour shall be made to look into the problems of the fishermen and see what is the appropriate practicable solution possible, complying the international obligations of India and the needs of the fishermen.
6. The aforesaid statement is taken on record and these petitions stand disposed of with the hope that the Union of India would surely look into the problem of the fishermen and endeavour to find a reasonable solution to the problem. No costs.''
11. On hearing the learned counsel for the petitioner, once again we have to state that we cannot go beyond what we have observed in that order. This Court has no jurisdiction to enforce a writ on the Sri Lankan Government. Learned counsel for the petitioner did strenuously seek to contend that the said relief is not being prayed for, but effectively in our opinion, that is the relief he has prayed for, though it may be couched in some other language. These are matters which have to be left to the diplomatic channels of the two countries. That the problem exists is not in doubt, but the solution cannot be by issuing a writ of mandamus and that too indirectly affecting what the Sri Lankan Government does, that being the grievance. We thus leave this issue to the wisdom of the Government Authorities.
The writ petition accordingly stands dismissed as not maintainable. No costs.
(S.K.K., CJ.) (R.M.D., J.) ksr 23.06.2016
The Hon'ble The Chief Justice
and
R.Mahadevan, J.
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W.P.SR.No.72171 of 2016
23.06.2016