Kerala High Court
M.K.Salim vs Union Of India on 3 April, 2017
Bench: A.M.Shaffique, Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 14TH DAY OF JUNE 2017/24TH JYAISHTA, 1939
WP(C).No. 28818 of 2016 (S)
----------------------------
PETITIONER(S):
-------------
M.K.SALIM
AGED 60 YEARS, S/O LATE HAJI M.K.AHMED KUNJU,
HAJI MANZIL, MAIN ROAD, KOLLAM-691001.
BY ADV. SRI.M.K.SALIM (PARTY IN PERSON)
RESPONDENT(S):
--------------
1. UNION OF INDIA
REPRESENTED BY ITS UNION SECRETARY,
GOVERNMENT OF INDIA, CENTRAL SECRETARIAT,
NEW DELHI-110001.
2. MINISTRY OF AGRICULTURE,
GOVERNMENT OF INDIA,
DEPARTMENT OF ANIMAL HUSBANDRY & FISHERIES,
KRISHI BHAVAN, NEW DELHI,
REPRESENTED BY ITS SECRETARY.
3. MINISTRY OF FINANCE,
GOVERNMENT OF INDIA, NEW DELHI,
REPRESENTED BY ITS SECRETARY.
4. RESERVE BANK OF INDIA,
CENTRAL OFFICE, SHAHEED BHAGAT SINGH MARG,
MUMBAI-400001.REPRESENTED BY ITS GOVERNOR.
5. MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY,
PANAMPALLY NAGAR, ERNAKULAM.
REPRESENTED BY ITS CHAIRMAN.
6. DIRECTOR GENERAL OF COAST GUARD.
COAST GUARD HEADQUARTERS, NEW DELHI-110001.
7. GOVERNMENT OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
WP(C) No. 28818/16 -2-
8. FISHERIES AND PORTS DEPARTMENT,
REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM-695001.
*ADDL.9. CENTRAL BUREAU OF INVESTIGATION (C.B.I.)
REPRESENTED BY SUPERINTENDENT OF POLICE,
PULLEPPADY THAMMANAM ROAD,
KATHRIKKADAVU.
[*IS SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENT NO.9 VIDE ORDER
DATED 3.4.2017 IN WP(C)]
R5 BY ADV. SRI.V.ABRAHAM MARKOS
R5 BY ADV. SRI.ABRAHAM JOSEPH MARKOS
R5 BY ADV. SRI.ISAAC THOMAS
R5 BY ADV. SRI.HARAN THOMAS GEORGE
R5 BY ADV. SRI.GOVIND VIJAYAKUMARAN NAIR
R1-R3,R 6 BY ADV. SRI.M.C.MONY, CGC
R4 BY ADV. SRI.MILLU DANDAPANI
R1-R3 & 6 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR
GENERAL
R9 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29/5/2017, THE COURT ON 14-06-2017 DELIVERED THE FOLLOWING:
WP(C).No. 28818 of 2016 (S)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1 TRUE COPY OF THE RELEVANT PORTIONS OF TERMS AND
CONDITIONS OF LETTER OF INTENT FOR OPERATION.
EXHIBIT P2 TRUE COPY OF THE LETTER DATED 3.11.2015 RELATING TO
THE LETTER TO THE QUERY OF PETITIONER.
EXHIBIT P3 TRUE COPY OF THE INSTRUCTIONS RELATING TO MID SEA
TRANSSHIPMENT OF CATCH BY DEEP SEA FISHING VESSELS VIDE A.P.(DIR
SERIES) CIRCULAR NO.48 DATED 21.11.2011 ISSUED TO THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE INFORMATION GOT TO THE PETITIONER
UNDER RIGHT TO INFORMATION ACT AS PER LETTER DATED 25.9.2015 ISSUED
BY THE 5TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 6.9.2013 ISSUED FROM THE
8TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE LETTER RECEIVED FROM THE PRIME
MINISTER'S OFFICE ON THE REPRESENTATIION OF PETITIONER.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED MAY,2016 ISSUED FROM THE
MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA.
ADDL.EXT.P8: TRUE COPY OF THE RELEVANT PAGES OF THE GREENPEACE
REPORT ON LICENSED TO LOOT.
EXTS. OF R2
-----------
EXT.R2(a): TRUE COPY OF THE ORDER DATED 30.1.2017 ISSUED BY THE
UNDER SECRETARY TO THE GOVERNMENT OF INDIA, DEPARTMENT OF ANIMAL
HUSBANDRY, DAIRYING AND FISHERIES.
EXT.R2(b): TRUE COPY OF OM NO.21002/12/2011-FY) IND) Pt. DATED
1.3.2017, ISSUED BY THE FISEHRIES DEVELOPMENT COMMISSIONER,
DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND FISHERIES.
EXT.R2(c): TRUE COPY OF LETTER F.NO.43-63/2014.Fy.II (DATA) DATED
2.3.2017 ISSUED BY THE DIRECTOR GENERAL (IC), FSI.
EXTS. OF R4
------------
EXT.R4(a): TRUE COPY OF THE EXPORT REGULATIONS DATED MAY 3, 2000.
EXT.R4(b): TRUE COPY OF THE NOTIFICATION ISSUED BY THE RESERVE BANK
OF INDIA FOREIGN EXCHANGE DEPARTMENT.
EXT.R4(c): TRUE COPY OF THE RELEVANT PORTION OF MASTER DIRECTION OF
THE EXPORT OF GOODS AND SERVICES.
Rp
//TRUE COPY//
PS TO JUDGE
A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.
===========================
W.P(C) No. 28818 of 2016
==================
Dated this, the 14th day of June, 2017
J U D G M E N T
Shaffique, J.
This writ petition is filed inter alia seeking the following reliefs:-
"1. To issue a writ of mandamus order or direction to the respondents to consider the representation submitted by petitioner to respondents regarding issuance of LOP licence and transshipment made by deep sea vessels against the interest of local fishermen and to direct the respondent to see that appropriate action is taken against the vessels not registered with 5th respondent for doing unauthorized fishing violating the rules and directions contained in the LOP licence.
2. To issue necessary appropriate directions to the respondents to stop unauthorized fishing and transshipment which results in heavy loss to the income of the country from the export of fish by foreign trawlers in the high seas using LOP and using the licence as a shield to market fish product in the high seas against the interest of domestic fishing and marketing of fish products.
WP(C) No.28818/16 -:2:-
3. To issue an order or direction to the respondents to withdraw the permission granted to make mid sea transshipments in the LOP licence issued to the foreign deep sea trawlers owned by Indian companies.
4. To grant such other relief which this Hon'ble Court may found deem fit and proper in the facts and circumstances of the case.
5. Issue a writ of mandamus or other appropriate writ order or direction directing the 1st respondent to set up a special team of officials from various national level investigation agencies like ED (Enforcement Directorate), CBI (Central Bureau of Investigation), NIA (National Investigating Agency) and CVC (Central Vigilance Commission) under the supervision of this Hon'ble court or a retired Judge of this Hon'ble Court and file investigation report before this Hon'ble court within a time limit as deem fit fixed by this Hon'ble court."
2. Petitioner claims to be a person getting involved in social issues and has approached this Court ventilating a grievance in public interest. According to him, by virtue of the policy issued by the Government of India, Letter of Permission (LOP) has been given to foreign deep sea trawlers who complies with the terms of LOP, on account of which substantial number of foreign trawlers were operating in the Indian Exclusive Economic Zone (EEZ). It is alleged that the large quantity of sea wealth was WP(C) No.28818/16 -:3:- being taken away without complying with the terms of LOP and there is no controlling mechanism worth mentioning to control such deep sea fishing. It is also contended that there was no effective mechanism to find out the sea wealth that had been taken away by the vessels who had obtained permission. It is further contended that though only registered Indian fishing vessels can operate as per the scheme of Department of Fisheries, Indian fishing firms were permitted to buy technologically advanced foreign vessels. As per the scheme, permission for a foreign vessel to operate in Indian EEZ is issued once it surrenders its registration in the country of origin and 10% of its cost is paid by the Indian firm to the original firm. It is contended that many of these vessels continue to be registered in their country of origin and are controlled by foreign firms. Indian firms were only proxy owners who is paid commission from the huge profit made by the original firms who sell Indian fish in the international market. It is further pointed out that the main loophole in the letter of permission is allowing midsea transshipments of fish catch and bunkering by deep sea trawlers. It is contended that there is absolutely no record of the sea wealth WP(C) No.28818/16 -:4:- that had been caught by usage of the aforesaid vessels. According to the petitioner, all the rules and procedure had been flouted, thereby causing loss of sea wealth of nearly 500 million dollars every year in foreign exchange.
3. It is further contended that respondents 4 and 5, Reserve Bank of India as well as Marine Products Export Development Authority have not taken any action in the matter. They should have ensured compliance of the terms of LOP and the guidelines issued by the Reserve Bank of India. Petitioner refers to the report of Meena Kumari Commission wherein it is stated that LOP licence holding Indian companies are engaged in midsea transshipments of their catch in high seas itself to either big U.S. trawler ships which have the capacity to process the catch in the ship itself or bunker in the nearby ports of Maldives, Srilanka and other South east Asian ports and return to their origin port abroad and not to be seen anymore. It is observed in the report that each of these vessels made a catch of 11 crores of Indian rupees per season. Petitioner also placed reliance upon reports of Greenpeace India, a non Government organization and reports of Muraary Commission, Ayyappan Commission etc., to WP(C) No.28818/16 -:5:- emphasise the alleged loot that is taking place on account of the uncontrolled and unmonitored LOP conditions.
4. Petitioner produced additional document as Ext.P8 which is a report of Greenpeace which also narrates the consequence of grant of LOP and it is stated that since its introduction the scheme has been meddled with irregularities and poor enforcement resulting in overfishing and the degradation of India's marine environment.
5. Counter affidavit has been filed by the 2nd respondent denying the aforesaid allegations. In the counter affidavit, it is stated that LOP holder deep sea fishing vessels are allowed to fish only in the EEZ which is beyond 12 nautical miles. Further, it is contended that LOP holder deep sea fishing vessels are owned by Indian entrepreneurs duly registered with Registrar of Indian Fishing Vessels namely Marine Mercantile Department under the Director General of Shipping (DG Shipping) or other authorities as notified under the Merchant Shipping Act, 1958. According to the 2nd respondent, LOP vessels cannot be termed as foreign vessels. It is further submitted that as per the existing policy of Government of India, foreign fishing vessels are not allowed to WP(C) No.28818/16 -:6:- fish in the Indian EEZ. Further, such vessels are allowed to do mid-sea transshipments of fish catch as per the guidelines issued by the Reserve Bank of India. It is stated that the vessel operator is required to inform Coast Guard and the 2nd respondent about the date, time and place of mid-sea transshipment well in advance along with the relevant information about the carrier vessel. The Coast Guard authorities inspect the vessel and monitor the mid-sea transshipment. It is also mandatory for the carrier vessel which is receiving the fish catch to have onboard international observer for monitoring the mid-sea transshipment. The shipment of such fish catch is also validated by the authorized international cargo surveyors when it is unloaded in the destination port. Thereafter the operator companies submit the voyage report and catch data along with invoice certified by the Bank to the Fishery Survey of India, Mumbai. The respondent denied the allegations raised by the petitioner and it is stated that appropriate action had been taken from time to time on the reports/recommendations submitted by various committees. Regarding the report submitted by Expert Committee headed by Dr.B.Meena Kumary, recommendations thereof had been WP(C) No.28818/16 -:7:- consulted with all coastal states and other stake holders and it was decided not to implement the said recommendations. Government of India constituted another Committee under the Chairmanship of Dr.S.Ayyappan on 28/7/2015 to suggest a draft National Policy on Marine Fisheries and to review the guidelines for deep sea fishing in Indian EEZ. The draft of the National Policy on Marine Fisheries, 2016 has been submitted on 29/7/2016 which has been circulated to all appraisal Departments/Ministries for their comments. It was also circulated to all coastal States/Union Territories and was placed in the website of Department of Animal Husbandry, Dairying and Fisheries, Ministry of Agriculture and Farmers Welfare, Government of India inviting comments from all stake holders. The finalisation of the draft policy is under consideration. Respondent denied the contentions based on the report of Greenpeace which according to them is not based on any evidence. Respondent further submits that for proper monitoring of the operations of the Indian deep sea fishing vessels, they are required to report the vessels position daily at 8.00 hrs to Coast Guard during the fishing operations which are being complied with by the vessel operators. In the light of the WP(C) No.28818/16 -:8:- aforesaid contentions, they sought for dismissal of the writ petition.
6. Counter affidavit has been filed by the 5th respondent stating that no relief had been claimed against them. According to them, their statutory duty is restricted to registering of fishing vessels, processing plants, storage premises related to marine products and of land transport used for the purpose of conveyance. According to them, they are not in position of any information on the exploitation of sea wealth by foreign vessels. It is contended that the jurisdiction of fishing beyond territorial waters of the State but within the EEZ is under the control of Department of Animal Husbandry, Dairying and Fisheries of the Ministry of Agriculture of the Government of India. LOP scheme is conceptualized and implemented by the said department of Government of India and the respondent has no role in the matter.
7. Counter affidavit has been filed by the 6th respondent stating that the Coast Guard has always been very vigilant in their operations in the territorial waters. According to them, they are bound to inspect the vessel before the completion of fishing WP(C) No.28818/16 -:9:- voyage for ascertaining the validity of licence/permit and crew details as per the approved list. During the mid-sea transshipment, the vessels are required to intimate the position of the transshipment to Coast Guard. Thy further submit that the Ministry of Agriculture has issued an order dated 30/1/2017 revoking the guidelines for operations of deep sea fishing vessels in Indian EEZ promulgated by order dated 12/11/2014.
8. The 4th respondent has filed counter affidavit denying the allegations raised in the writ petition. According to them, declaration procedure for mid-sea transshipment of catches by Indian vessels is done as per norms prescribed by the Ministry of Agriculture, Government of India which should be followed by the exporters in conformity with Regulation 3 of notification dated 3/5/2000. In order to rationalise the procedure, Reserve Bank has issued Ext.P3 circular. They have also narrated the extant guidelines covered by Ext.R4(c), which reads as under:-
(i) Since deep sea fishing involves continuous sailing outside the territorial limit, transshipment of catches takes place in the high sea leading to procedural constraints in regulatory reporting requirement viz., the Declaration of Export in terms of Notification No.FEMA.23/2000/RB dated May 3, 2000 WP(C) No.28818/16 -:10:- (superseded by R4(b)).
(ii) For mid-sea transshipment of catches by Indian owned vessels, as per the norms prescribed by the Ministry of agriculture, Government of India, the EDF declaration procedure in this regard has been rationalized in consultation with the Government of India as outlined below should be followed by the exporter in conformity with Regulation 3 of Notification No.FEMA.23/2000-RB dated May 3, 2000 (superseded by R4(b)).
(a) The exporters may submit the EDF, duly signed by the Master of the Vessel in lieu of Custom Certification, indicting the composition of the catch, quantity, export value, date of transfer of catch, etc.
(b) Bill of Lading/Receipt of Transshipment issued by the carrier vessel should include the EDF Number.
(c) The prescribed period of realization and repatriation should be reckoned with reference to the date of transfer of catch as certified by the Master of the vessel or the date of the invoice, whichever is earlier.
(d) The EDF, both original and duplicate, should indicate the number and date of Letter of Permit issued by Ministry of Agriculture for operation of the vessel.
(e) The exporter will complete the EDF in duplicate and both the copies may be submitted to the Customs at the registered port of the vessel or any other port as approved by Ministry of Agriculture. EDF (Original) will be retained by the Customs for capturing of data in Customs' Electronic Data Interchange. WP(C) No.28818/16 -:11:-
(f) Customs will give their running serial number on both the copies of EDF and will return the duplicate copy to the exporter as the value certification of the export has already been done as mentioned above.
(g) Customs will give their running serial number on both the copies of EDF and will return the duplicate copy to the exporter as the value certification of the export has already been done as mentioned above."
9. It is further contended that the accounts of deep sea trawlers are properly perused through the Indian companies bank account when shipments are made in the mid-sea by the trawlers. Other contentions have been denied by them. In the counter affidavit filed to IA No. 2014/2017, the 2nd respondent had further stated that taking into consideration the recommendation of the Committee and consulting other stake holders, the Department has decided to cancel the guidelines dated 12/11/2014 for issue and operation of LOP's pursuant to which order dated 30/1/2017 [R2(a)] has been issued by the Department rescinding the guidelines dated 12/11/2014 relating to operation of LOP vessels in the Indian EEZ. It is further stated that necessary instructions had been issued by the Department to the Coast Guard to stop shipping operation of LOP vessels. Consequential orders had been WP(C) No.28818/16 -:12:- issued to the Fisheries Development Commissioner as well. It is therefore contended that one of the relief sought for in the writ petition has already become infructuous. It is further contended that as against the permissible fleet size of 1188 vessels, not even 10% vessels were authorized through LOP to operate in the Indian EEZ. Out of the authorized vessels, the actual number of vessels operated per annum in the Indian EEZ remained less, ranging from 18 to 23 and that too during the tuna fishing season (October to March each year). Further, as per the catch data submitted by the LOP vessels to the Fishery Survey of India (FSI), Mumbai, the average annual catch of all LOP vessels during 2005 to 2015 has been 316 tonnes per year which is negligible in comparison to the available potential of oceanic resources estimated at 2,16,500 tonnes in the Indian EEZ. Along with IA No.2014/2017, petitioner had sought for amendment of the writ petition which was already allowed. It is further stated that the report titled 'license to loot' by Greenpeace of India is under consideration in WP(C) No. 13795/2010 before the High Court of Andhra Pradesh. The 2nd respondent further contended that two preliminary investigations had already been undertaken in the WP(C) No.28818/16 -:13:- year 2009 and 2010 by the Economic Offence Unit of the CBI, New Delhi and the files relating to all the companies to whom LOPs were issued were also taken. The preliminary investigation of CBI could not indicate any huge revenue loss to the country. A detailed investigation was conducted by CBI during 2011-12 on allegations of false letter of intents being used and there was no evidence for the same.
10. Heard the petitioner appearing as party-in-person and the learned counsel appearing for the respondents.
11. There is no dispute about the fact that the issue raised by the petitioner is of great concern. Even according to the reports that had been filed before this Court, the procedure adopted was not transparent enough to ensure proper accounting of the sea wealth that was being caught by Indian vessels having LOP. The fact that Government of India had decided to withdraw the LOP scheme by itself proves the fact that the system of LOP Scheme was not successful. In so far as the Ministry order dated 12/11/2014 has already been rescinded as per Ext.R2(a) dated 30/1/2017, relief No.3 has become infructuous.
12. The learned standing counsel for CBI had given a copy WP(C) No.28818/16 -:14:- of a self contained note in RC 14(A)/2011. That was a case registered on 4/3/2011 by the CBI against several persons in the Ministry and various other departments in the matter relating to deep sea fishing based on letter of permission granted by the Ministry for fishing operations in the EEZ. It is noticed that letter of intent were given to M/s.Safa Sea Foods, Chennai, M/s.Sarah Sea Foods, Chennai, M/s Neela Deep Sea Fisheries, Chennai, M/s. Skanda Marines Pvt. Ltd Chennai and M/s Om Shakthi Sea Foods Chennai and an investigation was conducted in the matter relating to the crime. The investigation revealed that all the companies were functioning under one roof. Finally it was observed that since the action of the officers amounts to misconduct and violation of the conduct rules, further action was not taken in the matter and departmental action was suggested. The note concluded as under:-
"Conclusion The proposal of M/s Safa Sea Foods, Chennai and M/s Sarah Sea Foods, Chennai were deferred by the EC in view of the stipulation that one applicant can hold LOP for four vessels, that these firms had same address and one of the partners of these firms was same. Shri.S.P.Chaturvedi did not point out this, which WP(C) No.28818/16 -:15:- was noted by Shri M.R.K.Nair, Joint Commissioner (Fisheries) wherein he remarked that these firms had been floated to circumvent the procedure of issuing LOPs for 4 vessels to an applicant. Thus, circumstantially, Shri S.P.Chaturvedi though had opportunity to know this fact by being one of the members of the 2nd Empowered Committee held on 24.8.2005 which stipulated the condition that a firm/company may not be granted more than 04 LOPs at a time and that the age of the vessels should not be more than 10 years did not take any tangible action.
Investigation has revealed that all these firms, viz. M/s Safa Sea Foods, M/s Sarah Sea Foods, M/s Neela Deep Sea Fisheries, M/s Skanda Marines Pvt. Ltd. and M/s Om Shakthi Sea Foods, are functioning under one roof.
As regards the extension of time limit of the Letter of Intent, it is revealed that the Letters of Intent issued to M/s Safa Sea Foods, Chennai was to expire on 17.3.2009 and the firm submitted the partial requisite documents vide their letter dated 9.3.2009 and requested to allow them to submit the remaining documents on arrival of the vessels at Port. The Officers of the Ministry neither allowed the firm's request nor disallowed it. They merely kept the same in the file and issued a reminder immediately to process the same. The Ministry, after a lapse of 7-8 months, issued Show Cause Notice dated 9.11.2009, while the firm submitted the remaining documents vide its letter dated 2.11.2009 and the reasons for the delay in submission of the same vide letter dated WP(C) No.28818/16 -:16:- 16.11.2009 citing the repair work carried out in the vessels and Typhoon in Taiwan.
As regards M/s Neela Deep Sea Fisheries, the Ministry issued Letters of Intent vide letters dated 18.9.2008 valid upto 17.3.2009. The firm vide its letter dated 7.3.2009 submitted partial documents and requested to allow them to submit the remaining documents on arrival of the vessels at Port. The Ministry vide letter dated 30.4.2009 requested the firm to submit the remaining documents immediately. The firm vide its letter dated 15.10.2009 submitted the remaining documents. In both these cases the A-1 & A-2 neither allowed the firm's request nor disallowed it. They merely kept the same in the file and directed the firm to submit the remaining documents so as to process the same.
Since the action of the officers amounts to misconduct and violation of conduct Rules, the FIR for criminal misconduct was closed and RDA was recommended against them."
13. Based on the final report, the Principal Special judge for CBI cases Chennai had closed the matter. It is therefore relevant to note that though an investigation was conducted in the matter which relates to the grant to letter of permission, no further action was taken in the matter. The facts available in the case would rather indicate that there was absolutely no control by any of the Departments of Government of India in regard to sea WP(C) No.28818/16 -:17:- wealth that had been appropriated by LOP licencees. In the counter affidavit filed by the Dr.P.Paul Pandian on behalf of Government of India, who is the Fishery Development Commissioner, Ministry of Agriculture and Farmers Welfare, Department of Animal Husbandry, Dairying and Fisheries, it is stated that the LOP vessels during 2005 to 2015 was having an average annual catch of 316 tons per year. It is also indicated that as against the permissible fleet size of 1188 vessels, not even 10% vessels were authorized through LOP. The Government of India is completely unaware of the total number of LOPs issued in the matter. Further, it is stated that the vessels that had operated in the Indian EEZ range from 18 to 23 and that too during the tuna fishing season. In other words there is no clear data available with Government of India regarding the number of LOPs issued, who were operating, the nature of catch, the quantum of catch, the quantum of transshipment etc. The contention that only 316 tonnes per year had been caught by about 18 to 23 vessels is totally unbelievable. On what basis this data was obtained is indicated in a letter dated 2/3/2017 sent by the Fishery Survey of India to the Secretary to Government of WP(C) No.28818/16 -:18:- India wherein catches are mentioned for each year. Taking into account all the factual circumstances, this figure cannot be accepted. It is totally unbelievable that such vessels will be operated for about 10 years for catching only 316 tons of fish. In the absence of any other data, it can only be assumed that the figures now shown has absolutely nothing to do with the actual catch. This Court is well aware of the fact that newspaper reports cannot be treated as evidence in the case. But in a case where the Government of India itself was doubtful about the LOP Scheme and its operation and several Committees were constituted for the purpose of ascertaining the functioning of LOP licencees and the manner in which it is being conducted, necessarily it has to be believed that the petitioner has ventilated a valid grievance. The Hindu published an article in its web page with the Heading Permit to plunder the sea where it is published as under:-
"No records It is important to remember that the LoP scheme was a significant departure from its predecessor charter scheme, under which fishermen could simply hire foreign vessels, fish with them in Indian waters and WP(C) No.28818/16 -:19:- then return the vessels to their respective countries. The problems with the charter scheme were plenty. First, since the vessels were just hired and not registered in India, it was impossible to track how much they were catching and where the catch was being sold. In effect, this was akin to allowing foreigners to fish in Indian waters. As they never landed any of their catch at any port in India (most of it was transhipped at mid sea), monitoring exports was tough.
The Murari Committee recommendations in 1997 urged the Ministry of Agriculture to suspend all licences for these vessels. The Ministry found a way out by initiating the LoP scheme instead. A close look at the way the scheme has functioned in the last decade makes it clear that nothing much has changed since the days of the charter scheme. Foreign vessels come to India, fake their registration papers, use shell companies, fish in Indian waters, export their catch by transhipping at mid sea and leave our seas and fishermen poorer year after year. Though Illegal, Unreported and Unregulated (IUU) fishing is not a new phenomenon, this must be the first time a country's government is actually actively promoting it. Financially too, the scheme's performance is nothing to write home about. According to vessel owners interviewed by us, on an average, a vessel nets about 200-250 tonnes of tuna every season. The Ministry's latest records say that currently, 79 vessels are operational in Indian waters under the scheme of which 56 are tuna long liners WP(C) No.28818/16 -:20:- and the remaining mid-water pelagic trawlers. Yellow fin tuna, which is the prize these vessels are after, sells at $10-15 (Rs.500 approximately) per kg in the international market. By a conservative estimate, from the tuna long liners alone, the catch would be worth Rs.630 crore every season. If this money were accruing to Indian fishermen, there is no evidence to show for it. Nor is it clear how much the export of tuna benefits the Indian exchequer, as there are no public records of the amount paid as export duties. All that is known is that the government of India earned a grand sum of around Rs.8,00,000 (which is not an annual but a one-time licensing fee). Since the scheme seems to have failed on every count, the logical questions that come to mind are who exactly is benefitting from the scheme? Are there vested interests?
14. The Meena Kumari report observed that the fleet plan for EEZ allowed operation of 725 vessels comprising 500 pole and line vessel, 110 tuna long liners, 72 Pelagic/mid water trawlers, 18 purse seiners, 15 squid jiggers and 10 trap/hook & line vessels. The sub committee further noticed that, as on 31/10/2011, there were only 81 valid LoPs of which 74 vessels were either tuna long liners or mid trawlers. It is therefore rather clear that no proper investigation was conducted into the matter at any point of time. Ext.P8 is the report of Greenpeace. According to the report, WP(C) No.28818/16 -:21:- problems arise on account of illegal, unreported and unregulated fishing, double flagging in a number of vessels in India under the LoP Scheme, lack of proper monitoring control and surveillance, transshipment loopholes etc,. Further, they have also narrated the social impacts caused on account of such unregulated and unmonitored procedures and the economic loss that is being suffered by the Government. While concluding, it is stated as under:-
"It is evident that the LoP scheme has yielded very little in the way of tangible benefits, either in terms of revenue, employment generation or the actual development of an indigenous deep sea fishing industry which might also enable a reduction on fishing pressure in near shore waters. Current management efforts are not sufficient, and the limited measures in place are clearly ineffective. As illustrated through this report, the LoP scheme has numerous loopholes and shortcomings and facilities regular non-reporting or under-reporting of catch and value transshipment of catch in the high-seas, failure to file bills to the Indian Customs listing the quantity of catch being taken out while exiting Indian EEZ, and violations of the Maritime Zones of India Act.
The LoP scheme critically undermines fisheries management in 3 significant ways:
WP(C) No.28818/16 -:22:-
1. The addition of these industrial vessels under the LoP scheme increases fishing capacity in the Indian EEZ, in a context where there is not enough knowledge about the status of the targeted stocks or what could be considered sustainable yields.
This has the strong potential to result in overfishing further out in the EEZ and undermine the future of the Indian fishing industry.
2. The LoP has certainly not added any significant value in terms of local employment, income and food security, supporting sustainable livelihoods,while causing a further deterioration of fish population levels and local marine ecosystems.
3. Creating a problem in determining actual fishing efforts occurring in the Indian EEZ.
While there may be scope to increase fisheries in the Indian EEZ, fleet expansion needs to be carefully planned to avoid over-exploitation. There is an urgent need to put in place adequate management measures for fishery resources in the EEZ, before any further expansion of fishing capacity and increase in fishing pressure in the EEZ takes place. Furthermore, it is important that the development of indigenous fleets avoid destructive fishing practices such as bottom- trawling and large-scale long-lining in the EEZ. It is also in India's interest as a progressive voice to demonstrate that it has an effective management system in place, consistent with its obligations under UNCLOS, UNFSA and other WP(C) No.28818/16 -:23:- international legal instruments. In moving forward, these serious loopholes need to be closed and steps need to be taken urgently towards developing a sustainable and equitable approach to fisheries which does not compromise on ecological imperatives.
Against the above background, Greenpeace recommends that the Ministry of Agriculture:
1. Suspend the LoP scheme and initiate a thorough investigation into the inherent loopholes within the scheme including any reported case of dual registration and other irregularities.
2. Stop the access of foreign vessels to marine resources in India's EEZ and create the required framework and structure to ensure that access is restricted to the Indian fishing sector, with particular emphasis on the traditional fishermen.
Specifically, aim to empower Indian fishers to participate in EEZ fishing through training, capacity building and protection and conservation of their resource.
3. In order to avoid well-known loopholes which make IUU catch possible, a MCS package should include mandatory vessel markings consistent with the FAO guidelines:tamper-proof VMS reporting by all vessels (especially, if any of foreign origin) prohibition of at sea transshipments: mandatory offload of catches in Indian ports; consider putting in place a national observers program on-board these vessels: a sanctions system which serves as an effective deterrent for infractions.
WP(C) No.28818/16 -:24:-
4. Engage in the management of its tuna resources through the IOTC, as a progressive player and work to ensure that exploitation levels by both Indian fleets and other regional fishing States and entities are consistent with precautionary catch levels which do not threaten the conservation of tuna populations;
5. Initiate the process of developing a comprehensive legislation for the conservation, management and utilization of fish resources in the EEZ based on environmentally sound and socially acceptable fisheries based on the following:
- Recognise the inalienable fishing rights of Indian traditional communities.
- Adopt an ecosystem and precautionary approach to fisheries
- Promote transparency and accountability in fisheries policy and management.
-Set total allowable catches at or below scientifically recommended levels, and such thresholds should be periodically reviewed.
- Consider the closure of areas further out in the EEZ (to all extractive activities) which would contribute to the replenishment of fish stocks, and preservation of key marine habitats and ecosystems."
15. Taking into consideration the overall factual circumstances involved in the matter, we are of the view that an appropriate investigation ought to be conducted to find out the WP(C) No.28818/16 -:25:- extent of loss that has been caused to Government of India on account of the LOP Scheme which has now been rescinded and necessary action has to be taken by the Government in that regard.
16. Accordingly, we are of the view that the following direction can be issued:-
(i) The 2nd respondent shall constitute a competent Committee to conduct an enquiry into the loss suffered by Government of India on account of the misapplication or non implementation or lack of procedural formalities in implementing the LOP Scheme and a report shall be obtained within a period of six months, which shall be published in the website of the Ministry and appropriate action shall be taken based on the said report.
(ii) While framing new scheme, Government of India shall also consider the said report and ensure that there is a proper accounting system for the sea wealth that is being caught from the EEZ and proper mechanism to monitor the same.
This writ petition is disposed of as above.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
ANU SIVARAMAN, JUDGE Rp