Madras High Court
Thoothukudi Naattuppadagu Eral ... vs The Assistant Director Of Fisheries ... on 22 February, 2024
Author: D. Krishnakumar
Bench: D. Krishnakumar, R.Vijayakumar
W.P(MD)No.4316 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.02.2024
CORAM:
THE HONOURABLE MR.JUSTICE D. KRISHNAKUMAR
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P(MD)No.4316 of 2013
and
M.P(MD)Nos.2 & 3 of 2013
1.Thoothukudi Naattuppadagu Eral Meenpidi
Thozhilalar Nala Sangam,
Represented by its Secretary K.Johnson,
184, Samuelpuram,
Tuticorin – 1.
2.Jananayaka Meenavar Meen Sarbu Tholilar Sangam,
Represented by its Secretary Spartegus,
No.8, Nadar Street,
Tuticorin – 628 001. ... Petitioners
vs.
1.The Assistant Director of Fisheries (Marine Wealth),
Tuticorin.
2.The Commissioner of Fisheries,
DMS Compound,
Teynampet,
Chennai.
3.The District Collector,
Tuticorin District,
Tuticorin.
1/13
https://www.mhc.tn.gov.in/judis
W.P(MD)No.4316 of 2013
4.The Chief Wild Life Warden,
Panagal Malligai,
Saidapet,
Chennai.
5.Thoothukudi District Naveena Murai
Sangu Kulippor Nala Sangam,
Represented by its President,
No.281/7, Madhava Nair Colony,
Thirespuram,
Tuticorin. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Mandamus, directing the first respondent
not to issue licence under Rule 3 of the Tamil Nadu Chank Fisheries Rules,
1981 in the areas notified as the Gulf of Mannar National Park and Gulf of
Mannar Biosphere Reserve under the Wild Life Protection Act, 1972.
For Petitioners : Ms.D.Geetha
For Respondent Nos.1 to 4 : Mr.S.P.Maharajan
Special Government Pleader
For Respondent No.5 : Mr.G.Prabhu Rajadurai
ORDER
(Order of the Court was made by D. KRISHNAKUMAR, J.) The petitioners have filed the present Writ Petition for issuance of a Writ of Mandamus, directing the first respondent not to issue a licence under Rule 3 of the Tamil Nadu Chank Fisheries Rules, 1981 in the areas 2/13 https://www.mhc.tn.gov.in/judis W.P(MD)No.4316 of 2013 notified as the Gulf of Mannar National Park and Gulf of Mannar Biosphere Reserve under the Wild Life Protection Act, 1972.
2.According to the petitioners, the chank diving is traced from Sangam through sources like Sangam literature and travellers, accounts and colonial period administrative records. The said tradition of using the technique of traditional divers for the collection of conch and other kinds of shells in the Tuticorin coast. The first respondent issued licences under the Tamil Nadu Chank Fisheries Rules, 1981 for fishing or diving for chanks or fishing vessels. Rule 3(iii) of the said Rules states the methods of fishing, diving, the crafts and gear employed and all other connected operations for the collection of chanks shall be in strict accordance with the terms and conditions under which the licence is issued. After the licence issued by the first respondent, the fishermen and chank divers could enter the sea for fishing and diving. The coast of Tuticorin is in Bio-Diversity and flora and fauna. The coast near Tuticorin has a high diversity of plants and animals in its marine, intertidal and near-shore habitats. The Ministry of Environment and Forest, Government of India, by Notification No.1/S/BO:Mannar, established the Gulf of Mannar Biosphere Reserve, after getting acceptance from the Government of Tamil Nadu to protect these rich habitats. In the 3/13 https://www.mhc.tn.gov.in/judis W.P(MD)No.4316 of 2013 said Notification in Annexure II, the core zone and buffer zone areas are enlisted. By G.O.Ms.No.962, Forest and Fisheries Department, dated 10.09.1986, the Government of Tamil Nadu in exercise of the powers conferred by sub-Section (1) of Section 35 of the Wild Life (Protection) Act, 1972, had declared its intention to constitute a National Park in the islands, in the Gulf of Mannar, off the coast of Tirunelveli District, which also included Tuticorin District. The said notification has enlisted the names of islands which fall within the National Park and has also given the area, distance from the mainland, the latitude and the longitude covering the said area.
3.Further, according to the petitioners, the first respondent in violation of the notification and violation of Section 35(6) of the Wild Life (Protection) Act, 1972, issued a license to chank divers within the area covered under the Gulf of Mannar National Park and the Gulf of Mannar Biosphere Reserve. The Ministry of Environment and Forest, Government of India by notification, dated 05.12.2001 has amended Schedule I and IV of the Wild Life (Protection) Act, 1972. Under the said notification, new entries were included in Part IV B of the First Schedule and further after serial No. 18 new entries were added. According to the petitioners, there is a 4/13 https://www.mhc.tn.gov.in/judis W.P(MD)No.4316 of 2013 prohibition for capturing or hunting or having in one's possession of the various animals which have also been enlisted in the affidavit filed by the petitioners. The first respondent issued a licence for chank divers and for vessels which carry the chanks collected by the divers under Rule 3 of the Tamil Nadu Chank Fisheries Rules, 1981. Though the aforesaid chank divers used oxygen cylinders during diving, the same has been prohibited by the first respondent. Further, the petitioners alleged that there has been using of compressors placed in the boats, a crude method by which the divers hold one end of a tube in their mouth and the other end is connected to the compressors placed in the boat. The oxygen is supplied by the compressors. Further, in the alleged modern technique of diving with the use of the compressor, the divers stay in the sea bed for more than 3 hours and the sea bed is quarried for chunks with the use of instruments ploughing the sea bed. Further, there are a large number of boats with compressors that are mining the sea bed. Thus, according to the petitioners, the Government has enacted the Indian Fisheries Act, 1897, rules have been framed under the Tamil Nadu Chank Fisheries Rules, 1981 and in the light of the declaration of Gulf of Mannar National Park and Gulf of Mannar Biosphere Reserve, the first respondent has no jurisdiction to grant licence for fishing, diving in the areas declared as National Park and Biosphere Reserve. Hence, 5/13 https://www.mhc.tn.gov.in/judis W.P(MD)No.4316 of 2013 the notification declaring the Gulf of Mannar National Park and the Gulf of Mannar Biosphere Reserve prohibits any activity in the core zone of the Biosphere Reserve.
4.The fourth respondent filed a counter-affidavit, wherein it is stated as follows:
'7.The National Park is notified under Section 35(1) of the Wildlife Protection Act, 1972 stating its intention to notify the area as National Park. Further, the provisions of section 27 to 33 A (both inclusive) shall come into effect forthwith from the date of notification. Section 35 (8) states that “the provisions of Sections 27 and 28, Sections 30 to 32 (both inclusive), and C1s, (a), (b) and (c) of [Sec. 33, 33A] and Section 34 shall, as far as may be, apply in relation to a National Park as they apply in relation to a sanctuary. Sections 27 to 33 A states as follows:
'Section 27. Restriction on entry in sanctuary. (1) No person other than,
(a) a public servant on duty;
(b) a person who has been permitted by the Chief Wildlife Warden or the authorized officer to reside within the limits of the sanctuary:
(c) a person who has any right over immovable property within the limits of the sanctuary,
(d) a person passing through the sanctuary along a public highway, and 6/13 https://www.mhc.tn.gov.in/judis W.P(MD)No.4316 of 2013
(e) the dependents of the person referred to in CI. (a), (b) or
(c) shall enter or reside in the sanctuary, except under and in accordance with the conditions of a permit granted under section 28.
(2) Every person shall, so long as he resides in the sanctuary, be bound
(a) to prevent the commission, in the sanctuary, or an offence against this Act;
(b) where there is reason to believe that any such offence against this Act has been committed in such sanctuary, to help in discovering and arresting the offender,
(c) to report the death of any wild animal and to safeguard its remains until the Chief Wildlife Warden or the authorised officer takes charge thereof;
(d) to extinguish any fire in such sanctuary of which he has knowledge or information and to prevent from spreading by any lawful means in his power, any fire within the vicinity of such sanctuary of which he has knowledge or information; and
(e) to assist any forest officer, Chief Wildlife Warden, Wildlife Warden or police officer demanding his aid for preventing the commission of any offence against this Act or in the investigation of any such offence.
(3) No person shall, with intent to cause damage to any boundary- mark of a sanctuary or to cause any wrongful gain as defined in the Indian Penal Code (45 of 1860), alter, destroy, move, or deface such boundary-mark.
(4) No person shall tease or molest any wild animal or litter the grounds or sanctuary.
Section 28. Grant of permit. (1) The Chief Wildlife Warden may, on application, grant to any person a permit to enter or reside in a sanctuary for all or any of the following purposes, namely: 7/13
https://www.mhc.tn.gov.in/judis W.P(MD)No.4316 of 2013
(a) investigation or study of wildlife and purposes ancillary or incidental thereto;
(b) photography:
(c) scientific research;
(d) tourism;
(e) transaction of lawful business with any person residing in the sanctuary.
(2) A permit to enter or reside in a sanctuary shall be issued subject to such conditions and on payment of such fee as may be prescribed.
Section 29 Destruction, etc., in a sanctuary prohibited without a permit. -
No person shall destroy, exploit or remove any wildlife from a sanctuary or destroy or damage the habitat of any wild animal or deprive any wild animal or its habitat within such sanctuary except under and in accordance with a permit granted by the Chief Wildlife Warden and no such permit shall be granted unless the State Government being satisfied that such destruction, exploitation or removal of wildlife from the sanctuary is necessary for the improvement and better management of wildlife therein authorises the issue of such permit.
30. Causing fire prohibited. - No person shall set fire to a sanctuary, or kindle any fire, or leave any fire burning, in a sanctuary, in a manner as to endanger such sanctuary.
31. Prohibition of entry into sanctuary with weapon. - No person shall enter a sanctuary with any weapon except with the previous permission in writing of the Chief Wildlife Warden or the authorised officer.
8/13 https://www.mhc.tn.gov.in/judis W.P(MD)No.4316 of 2013
32. Ban on use of injurious substances. - No person shall use in a sanctuary, chemicals, explosives or any other substances which may cause injury to, or endanger, any wildlife in such sanctuary.
33. Control of sanctuaries. - The Chief Wildlife Warden shall be the authority who shall control, manage and maintain all sanctuaries and for that purpose, within the limits of any sanctuary,
(a) may construct such roads, bridges, buildings, fences or barrier gates, and carry out such other works as he may consider necessary for the purposes of such sanctuary;
(b) shall take such steps as will ensure the security of wild animals in the sanctuary and the preservation of the sanctuary and wild animals, therein;
(c) may take such measures, in the interests of wildlife, as he may consider necessary for the improvement of any habitat.
(d) may regulate, control or prohibit, in keeping with the interests of wildlife, the grazing or movement of (livestock).
8.Section 35 (6) states as follows: 'No person shall, destroy, exploit, or remove any wildlife from a National Park or destroy or damage the habitat or any wild animal or deprive any wild animal or its habitat within such National Park except under and in accordance with a permit granted by the Chief Wildlife Warden and no such permit shall be granted unless the State Government, being satisfied that such destruction, exploitation, or removal of wildlife from the National Park is necessary for the improvement and better management of wildlife therein, authorises the issue of such permit.'
5.Further, in the counter-affidavit filed by the fourth respondent, it is stated that any licences issued by the first respondent should mention 9/13 https://www.mhc.tn.gov.in/judis W.P(MD)No.4316 of 2013 the area limits for fishing and diving and should not be issued for diving or fishing in the National Park boundary, which would otherwise violate the Wildlife Protection Act, 1972. Further, the practice of using technology for a destructive way of collecting chanks and shells should be discontinued forthwith, though most of the activity is being done in the Gulf of Mannar Biosphere Reserve areas, which also houses various biodiverse rich habitats, flora and fauna, which are highly rare and endangered. The Fisheries authorities cannot issue licence to chank fishing activities in the notified areas (Sanctuary or National Park) either to exploit the prohibited items of species prohibited under various schedules of the Wildlife Protection Act, 1972 or any other species falling within the National Park boundaries. Further, it is stated that it is the duty of the fourth respondent to protect the wildlife available within the National Park and also to protect the wildlife species specified in the schedule of the Wildlife Protection Act, 1972.
6. Considering the facts and circumstances of the case, we are of the view that when the Government has enacted the Indian Fisheries Act, 1897 and thereafter, rules were framed under the Tamil Nadu Chank Fisheries Rules, 1981 and the Notification has also been issued in 10/13 https://www.mhc.tn.gov.in/judis W.P(MD)No.4316 of 2013 G.O.Ms.No.962, Forests and Fisheries, dated 10.09.1986, the first respondent cannot have any jurisdiction for issuing licence for the chank diving or any other right for fishing. When there is a specific stand taken by the fourth respondent that the area which is covered under the National Park or Sanctuary and the aforesaid areas are notified as prohibited areas, the first respondent shall not issue any such licence within the aforesaid prohibited distance. Further, we are of the view that the first respondent has not mentioned the area limits for fishing and diving, to protect the wildlife available within the National Park and also to protect the wildlife species specified in the schedule of the Wild Life Protection Act, 1972, the first respondent cannot have any right to issue any licence in the prohibited area which has been classified as biosphere.
7.In the light of the above, this Writ Petition stands allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
[D.K.K.,J.] [R.V.,J.]
22.02.2024
(1/3)
NCC : Yes / No
Index : Yes / No
ps
11/13
https://www.mhc.tn.gov.in/judis
W.P(MD)No.4316 of 2013
To
1.The Assistant Director of Fisheries (Marine Wealth), Tuticorin.
2.The Commissioner of Fisheries, DMS Compound, Teynampet, Chennai.
3.The District Collector, Tuticorin District, Tuticorin.
4.The Chief Wild Life Warden, Panagal Malligai, Saidapet, Chennai.
12/13 https://www.mhc.tn.gov.in/judis W.P(MD)No.4316 of 2013 D. KRISHNAKUMAR,J.
and R.VIJAYAKUMAR,J.
ps ORDER MADE IN W.P(MD)No.4316 of 2013 DATED : 22.02.2024 (1/3) 13/13 https://www.mhc.tn.gov.in/judis