Madras High Court
J.Brinso Raymond vs The District Collector on 22 February, 2018
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan, R.Hemalatha
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 22.02.2018
RESERVED ON : 21.02.2018
DELIVERED ON : 22.02.2018
CORAM
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
W.P(MD)No.3308 of 2018 and
W.M.P(MD)No.3473 of 2018
W.P(MD)No.3258 of 2018 and
W.M.P(MD)Nos.3425 to 3428 of 2018
and
W.P(MD)No.3559 of 2018
W.P(MD)No.3308 of 2018:
J.Brinso Raymond ... Petitioner
Vs.
1.The District Collector,
Ramanathapuram District,
Ramanathapuram.
2.The Commissioner of Fisheries,
Administrative Office Building,
Teynampet,
Chennai - 6.
3.The Tahsildar,
Rameswaram,
Ramanathapuram District.
4.Anthony Samy,
Co-ordinator,
Vercode Saint Soochaiappar Church,
Vercode,
Rameswaram. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to
issue a writ of Certiorarified Mandamus to call for the records relating to
the impugned orders in Na.Ka.C4/2072/2018, dated 29.01.2018 passed by the
first respondent and quash the same as illegal and consequently, direct the
respondents to permit the fishermen in and around Rameswaram with Wooden
Vallam Motorized to participate in St.Antony Church festival at Katchatheevu.
!For Petitioner : Mr.M.Jerin Mathew
^For Respondents : Mr.K.Chellapandian,
Additional Advocate General
assisted by
Mr.A.K.Baskarapandian,
Special Government Pleader for R.1 to R.3
Mr.D.Balamurugapandi for R.4
W.P(MD)No.3258 of 2018:
X.Nallathambi @ Chinnathambi ... Petitioner
Vs.
1.Union of India,
represented by
The Principal Foreign Secretary,
Ministry of External Affairs,
E-Block, Central Secretariat,
New Delhi.
2.State of Tamil Nadu,
represented by
The Principal Secretary,
Home Department,
Fort St. George,
Chennai - 600 009.
3.The Commissioner of Fisheries,
Administrative Office Building,
Teynampet,
Chennai - 600 006.
4.The District Collector,
Office of the District Collector,
Ramanathapuram District.
5.The Superintendent of Police,
Ramanathapuram District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to
issue a writ of Certiorarified Mandamus to call for the records relating to
the impugned proceedings in Na.Ka.C4/2072/2018, dated 29.01.2018, of the
fourth respondent and quash the same as illegal and unconstitutional and
consequently, direct the respondents to permit the traditional fishermen to
participate in St.Antony's festival at Katchatheevu to be held on 23.02.2018
and 24.02.2018 by sailing through Country Craft Boats and also direct the
respondents to arrange necessary protection and assistance to the traditional
fishermen who visit as Pilgirms from Tamil Nadu to Katchatheevu within the
time stipulated by this Court.
For Petitioner : Ms.A.Rajini
For Respondents : Mr.V.Kathirvelu,
Assistant Solicitor General of India
assisted by Mr.Subbiah for R.1
Mr.K.Chellapandian,
Additional Advocate General
assisted by
Mr.A.K.Baskarapandian,
Special Government Pleader for R.2 to R.5
W.P(MD)No.3559 of 2018:
K.Thirumurugan ... Petitioner
Vs.
1.Union of India,
represented by
The Principal Foreign Secretary,
Ministry of External Affairs,
E-Block, Central Secretariat,
New Delhi.
2.State of Tamil Nadu,
represented by
The Principal Secretary,
Home Department,
Fort St. George,
Chennai - 600 009.
3.The Commissioner of Fisheries,
Administrative Office Building,
Teynampet,
Chennai - 600 006.
4.The District Collector,
Office of the District Collector,
Ramanathapuram District.
5.The Superintendent of Police,
Ramanathapuram District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to
issue a writ of Mandamus to direct the respondents to permit the fishermen
and devotees to visit and participate in St.Antony's Church festival at
Katchatheevu to be held on 23.02.2018 and 24.02.2018 through country boats
and sail boats by considering the representation submitted by the petitioner,
dated 23.01.2018 in accordance with law within the time stipulated by this
Court.
For Petitioner : Dr.R.Alagumani
For Respondents : Mr.V.Kathirvelu,
Assistant Solicitor General of India
assisted by Mr.Subbiah for R.1
Mr.K.Chellapandian,
Additional Advocate General
assisted by
Mr.A.K.Baskarapandian,
Special Government Pleader for R.2 to R.5
:COMMON ORDER
M.SATHYANARAYANAN,J.
The issue involved in these writ petitions pertains to according permission to the country boat fishermen to visit Katchatheevu to participate in St.Antony Church festival on 23.02.2018 and 24.02.2018 and therefore, all the writ petitions are disposed of by this common order.
W.P(MD)No.3308 of 2018:
2. This writ petition is filed as a Public Interest Litigation by the petitioner who claims that he is a practising Advocate in Ramanathapuram District Court and also a fisherman by birth and that their family for generation together worshipped St.Antony at Katchatheevu. The grievance expressed by the petitioner is that for very many years, the fishermen used to take country boat and vallams fitted with engines to go to Katchatheevu for the purpose of participating in St.Antony Church festival at Katchatheevu and all of a sudden, from 2014 onwards, they were prevented from doing so alleging safety.
3. The representations submitted by the petitioner on 16.01.2018 in this regard was rejected by the District Collector, Ramanathapuram District alleging that looking from safety angle, Vallam boats are not safe to go to Katchatheevu and challenging the legality of the said order, has filed the present writ petition.
W.P(MD)No.3258 of 2018:
4. This is also a Public Interest Litigation filed by the petitioner who claims to be the Organiser of Traditional Fishermen Federation and has also made a similar request to the District Collector, Ramanathapuram District, who vide endorsement, dated 29.01.2018, has observed that journey to Katchatheevu through country boats fitted with engines is not safe and they have to approach the sixth respondent being the Co-ordinator for consideration of their request.
W.P(MD)No.3559 of 2018:
5. This writ petition is also a Public Interest Litigation filed by a practising Advocate, who claims to be hailing from fishermen community, making a similar request by praying a writ of Mandamus to consider his representation dated 23.01.2018 to permit the fishermen and devotees to participate in St.Antony Church festival to be held on 23.02.2018 and 24.02.2018 through country boats.
CONTENTIONS:
6. The respective learned Counsel for the petitioners would submit that as per the Agreement Between India and Sri Lanka on the Boundary in Historic Waters Between the Two Countries and Related Matters, dated 28.06.1974, especially, in terms of Article 5, Indian fishermen and pilgrims will enjoy access to visit Katchatheevu as hitherto and will not be required by Sri Lanka to obtain travel documents or visas for these purposes and in the light of the same, there cannot be any impediment to permit them to take their country boats and vallams fitted with engines to go to Katchatheevu.
7. It is the further submission of the respective learned Counsel for the petitioners that whatever safeguards/permission required, they are ready to comply with the same and also assured before this Court that the fishermen and their family would alone go to Katchatheevu in their country boats and vallams fitted with engines in the event of permission being granted and no paid passengers will be ferried and they are also willing to undertake the consequences and risks involved in the said journey and prayed for appropriate orders.
8. Per contra, Mr.K.Chellapandian, learned Additional Advocate General assisted by Mr.A.K.Baskarapandian, learned Special Government Pleader appearing for the officials of the Government of Tamil Nadu, who are arrayed as respondents in these writ petitions, on instructions, would submit that a Co-ordination Meeting was held in the Office of the District Collector, Ramanathapuram District, on 29.01.2018 at 10.30 a.m., regarding preparatory measures and security arrangements to be taken in connection with pilgrims to Katchatheevu on 23.02.2018 and 24.02.2018, wherein the concerned officials as well as Fr.A.Anthonysamy, Parish Priesh, St.Joseph's Church, Rameswaram, had participated and after holding discussions with the departmental officials and the Co-ordinator, the District Collector, Ramanathapuram District, formulated the conditions to be observed by the pilgrims and the precautionary measures to be taken by all the law enforcing agencies as well as by the said Co-ordinator and prior to formulation of the said conditions, the representation of the petitioner in W.P(MD)No.3258 of 2018 as well as the representation of the petitioner in W.P(MD)No.3308 of 2018 were taken into consideration and a fair decision has been taken, especially, from the safety angle not to permit the pilgrims through vallams to Katchatheevu and that apart, a Committee consisting of the officials of the Fisheries Department, numbering 10, was also constituted to assess the stability and seaworthiness of the traditional fishing boats which are proposed to be used for ferrying devotees to Katchatheevu and after analysing the technical aspect, the Committee opined that the devotees ferrying to Katchatheevu in traditional fishing boats will be unsafe and jeopardize the life of the devotees and therefore, made a recommendation not to allow the traditional fishing boats for ferrying the devotees to Katchatheevu and come back.
9. It is also the submission of the learned Additional Advocate General appearing for the State that necessary publications inviting the applications to go to Katchatheevu was published on 10.01.2018 and the last date was also over on 05.02.2018 and the identity cards were prepared and also handed over to the pilgrims who are permitted to go to Katchatheevu, after taking into consideration the reports of Q-Branch and Intelligence Bureau as to the antecedents of the said pilgrims and since the petitioners had approached this Court at the very last moment and also taking into consideration the safety angle and other logistics involved, it is impossible to consider their request.
10. Mr.V.Kathirvelu, learned Assistant Solicitor General of India assisted by Mr.Subbiah, learned Standing Counsel appearing for the Union of India would submit that insofar as the identification of the pilgrims, logistics and issuance of identity cards to the pilgrims are concerned, the Central Government is nothing to do with the same and their role is to provide appropriate security to the convoy of boats upto Indian Maritime Border Line and it is for the State Government to take a call.
11. The respective learned Counsel for the petitioners, in response to the submission of the learned Additional Advocate General appearing for the State, would reiterate their submission that they never intend to ferry the passengers by collecting the fare and they along with their family intend to go to Katchatheevu through their country boats and vallams and those boats are capable of going to Katchatheevu and coming back in the convoy within the stipulated time and there is no question of risk involved for the reason that they are hailing from traditional fishermen families and used to vagaries of weather and once again assured that they will bear the risk and consequences and prayed for appropriate orders to enable them to go to Katchatheevu to fulfil their religious debt and obligation.
12. This Court paid it's anxious consideration and best attention to the rival submissions and also perused the materials placed before it.
13. This Court for the sake of convenience and easy understanding, is enclosing the following documents as Annexures to this common order:
Annexure - A :Agreement Between India and Sri Lanka on the Boundary in Historic Waters Between the Two Countries and Related Matters, dated 28.06.1974.
Annexure - B :Minutes of the Co-ordination Meeting held at Collector's Office, Ramanathapuram on 29.01.2018 at 10.30 a.m., regarding Preparatory Measures and Security Arrangements to be taken in connection with pilgrimage to Katchatheevu on 23.02.2018 and 24.02.2018, in C4.2072/2018, dated 29.01.2018, on the file of the District Collector, Ramanathapuram District.
Annexure - C :Joint Inspection report, dated 14.02.2018, of the Committee constituted to assess the stability and seaworthiness of the traditional fishing boats which are proposed to be used for ferrying devotees to Katchatheevu and back.
14. A perusal of Annexure - A would indicate that it contains 8 Articles and the object of the said agreement is "Desiring to determine the boundary line in the historic waters between India and Sri Lanka and to settle the related matters in a manner which is fair and equitable to both sides."
15. Article 5 of Annexure - A states that "Subject to the foregoing Articles 1 to 4, Indian fishermen and pilgrims will enjoy access to visit Kachchativu as hitherto, and will not be required by Sri Lanka to obtain travel documents or visas for these purposes."
16. The said Article would prima facie indicate that the Indian fishermen and pilgrims will enjoy access to visit Katchatheevu as hitherto and they are not under the requirement to obtain travel documents and visas from the Government of Sri Lanka for these purposes.
17. Therefore, this Court is of the considered view that the right of the traditional fishermen rather fishermen to visit Katchatheevu is protected by virtue of the said agreement.
18. It is also brought to the knowledge of this Court that during the height of war between the Government of Sri Lanka and Liberation Tigers of Tamil Ezham, no permission was accorded to enter Katchatheevu and also due to attack of Indian fishermen, seizure of boats and fishing nets and damage to boats, for sometime, such a visit was not made by the fishermen and use of country boats and vallams has been prohibited eversince the year 2014.
19. Let this Court also consider the statutory provisions governing the field.
20. The Tamil Nadu Marine Fishing Regulation Act, 1983, [Tamil Nadu Act No.8 of 1983], came to be enacted to provide regulation, restriction and prohibition of fishing by fishing vessels in the sea along the whole or part of the coast line of the State.
21. Section 3(e) defines 'fishing vessel' and it means a ship or boat, whether or not fitted with mechanical means of propulsion, which is engaged in sea-fishing for profit and includes - (i) a deep sea fishing vessel; (ii) a mechanical fishing vessel; (iii) a catamaran; (iv) a country craft, including Vallom, or (v) a canoc, engaged in sea fishing.
22. Section 3(g) speaks about 'mechanical fishing vessel' and it means a ship or boat fitted with mechanical means of propulsion having an engine of not less than fifteen Horse Power but not more than one hundred and twenty Horse Power and measuring in length not less than eight metres and not more than fifteen metres, but does not include a deep sea fishing vessel, and a "deep sea fishing vessel" means a ship or boat fitted with mechanical means of propulsion having an engine of not less than one hundred and twenty Horse Power and measuring in length not less than fifteen metres.
23. Chapter II of the said Act deals with regulation, restriction or prohibition of fishing in the specified area and it is relevant to extract hereunder Section 5(3):
"(3) Notwithstanding anything contained in sub-sections (1) and (2), no owner or master of a mechanised fishing vessel shall use are cause or allow to be used such fishing vessel for fishing operation in the sea within three nautical miles from the coast line in the State and the owner or master of a mechanised fishing vessel shall use or cause or allow to be used such mechanised fishing vessel only beyond three nautical miles from the coast line in the State and such operation beyond three nautical miles shall be subject to the conditions specified in the Schedule to this Act."
24. The said Act was amended under Act 25 of 2000 and the amendments were effected to Sections 7, 10, 15 and 17 as to the provision of buoy, first aid box, equipment for communication and life saving and fighting appliances to be carried by a fishing vessel and under the Act 5 of 2011, Section 3(g) was substituted as follows:
"(g). "mechanized fishing vessel" means a ship or boat fitted with mechanical means of propulsion having an engine of not less than twenty Horse Power but not more than one hundred and fifty Horse Power and measuring in length not less than ten metres and less than twenty metres, but does not include a deep sea fishing vessel, and a "deep sea fishing vessel" means a ship or boat fitted with mechanical means of propulsion having an engine of more than one hundred and fifty Horse Power and measuring in length not less than twenty metres."
25. It is also the submission of the respective learned Counsel for the petitioners that in the light of the said amendment, all the registered fishing vessels are under mandate to keep those articles/items and it would take care of the safety aspect also.
26. The attention of this Court was also invited to the order dated 22.02.2017, made in W.P(MD)No.2178 of 2017 [J.Brinso Raymond v. The District Collector, Ramanathapuram District, Ramanathapuram and 2 others] which was filed for issuance of a writ of Mandamus directing the District Collector of Ramanathapuram District and the Commissioner of Fisheries, Chennai, to permit the fishermen in and around Rameswaram with country boat with motor engines (Vallam) to participate in St.Antony Church festival at Katchatheevu and forbear one L.Sagaraj, Co-ordinator, Vercode Saint Soochaiappar Church, Vercode, Rameswaram, from functioning as the Co-ordinator for the said festival and consequently, direct any of the State authorities to function as the Co-ordinator and the said writ petition was allowed in part vide order dated 22.02.2017 and the officials were directed to look into the representation dated 18.01.2017 submitted in that regard and give disposal within three days.
27. It is the submission of the respective learned Counsel for the petitioners that without understanding the scope and purport of the said order, especially, the Amendment Act 25 of 2000, their reasonable and fair request to visit Katchatheevu in their country boats and vallams fitted with engines came to be rejected erroneously.
28. It is also the claim of the petitioners that since all the country boats and vallams are fitted with engines, they are categorised as mechanical fishing vessels and therefore, they can be used for fishing operations within the sea and outside 3 nautical miles from the coast line and on that ground also, there cannot be any impediment to permit the traditional fishermen to go to Katchatheevu to attend and participate in the festival.
29. A perusal of the materials in the form of Annexures - B and C, would clearly reveal that the safety and security aspect plays more prominent role and given importance.
30. The mechanized vessels under Annexure - B are given to ferry the pilgrims to Katchatheevu to attend St.Antony Church festival and come back.
31. However, it is to be pointed out at this juncture that a fishing vessel is not expected to ferry or hire the passengers as it would be akin to taking the passengers in a goods vehicle. The insurance policies pertaining to the fishing vessels have also been produced before this Court and there is an exclusion clause available and as per the same, the passengers are prohibited to go in the said fishing vessel.
32. In fact, in Annexure - C, a recommendation has also been made that "Though all the pilgrims are using mechanized fishing boats for ferrying to Katchatheevu for the past 6 years, it is also not complete safe to the pilgrims. The pilgrims are in the age between 5-70 years, most of them are not at all familiar with the sea journey. So, the use of mechanized boats may also be avoided in future and alternative Ferry service boats may be arranged for ferrying of pilgrims to Katchatheevu."
33. The said recommendation might have been made in the light of the fact that the fishing vessels are not expected to ferry the passengers, especially, the insurance policies pertaining to the said vessels also prohibit the passengers being carried in the fishing vessels.
34. When this Court has also put a query to the learned Additional Advocate General appearing for the State that in the event of happening of any untoward incident or accident, which may result in loss of lives or injuries to the said pilgrims, who are undertaking their journey in a mechanized fishing vessel, time is sought to get instructions.
35. It is also the submission of the learned Assistant Solicitor General of India appearing for the Union of India that except the fact that they have to provide safe passage and security, rest of the things fall within the domain of the State Government.
36. In the event of happening of any such untoward incident or accident, the State Government is bound to compensate the victims and it is high time that at least from the next year, they have to take a decision to ferry the passengers in ferry boats meant for passenger traffic.
37. It is also to be noted at this juncture that the owners of the mechanized fishing vessels, who are permitted to carry the passengers to Katchatheevu in connection with St.Antony Church festival, in the event of any accident or damage to the said boats cannot also claim any compensation from the Insurance Companies for the reason that the ferry of passengers in fishing vessels is also expressly prohibited and in that event also, the State Government may be mulcted with liability to compensate them.
38. It is also brought to the knowledge of this Court that all the pilgrims are subjected to security measures in the form of verification of their background details through Q-Branch and Intelligence Bureau.
39. Though the respective learned Counsel for the petitioners would pray that since they are willing to abide by all the conditions and security measures, their boats may also be part of convoy and they will also abide by the timings, this Court, in the light of the fact that the festival is going to be held on 23.02.2018 and 24.02.2018, is not in a position to grant any relief for this year.
40. As already noted, it is not as if in every year, the pilgrims went to Katchatheevu in connection with the said festival and during the height of war between the Government of Sri Lanka and Liberation Tigers of Tamil Ezham and also on account of skirmishes between Sri Lankan Navy and Indian fishermen, the pilgrims have not gone to the said island and therefore, the petitioners may not be put to any prejudice if they are not allowed to take their country boats and vallams fitted with engines to Katchatheevu to attend the said festival for this year.
41. Since Article 5 of Annexure - A mandates that Indian fishermen and pilgrims will enjoy access to visit Katchatheevu as hitherto and they will not be required by Sri Lanka to obtain travel documents or visas for these purposes, at least, from next year onwards, the fishermen and their close family members may be allowed to travel to Katchatheevu to attend St.Antony Church festival in their country boats and vallams fitted with engines, subject to fulfillment of the norms and regulations as well as the safety and security measures.
42. The Government of Tamil Nadu shall also take a call as to the use of mechanized fishing vessels to ferry the passengers for hire and from the next year onwards, shall take an endeavour to ferry the passengers in ferry vessels to transport and ferry the pilgrims to the said island in connection with the said festival as it would avoid complications in the event of untoward incident or accident.
43. In the result, all the writ petitions stand disposed of accordingly. No costs. Consequently, all the connected writ miscellaneous petitions are closed.
To
1.The District Collector, Ramanathapuram District, Ramanathapuram.
2.The Commissioner of Fisheries, Administrative Office Building, Teynampet, Chennai - 6.
3.The Tahsildar, Rameswaram, Ramanathapuram District.
4.The Principal Foreign Secretary, Union of India, Ministry of External Affairs, E-Block, Central Secretariat, New Delhi.
5.The Principal Secretary, State of Tamil Nadu, Home Department, Fort St. George, Chennai - 600 009.
6.The Commissioner of Fisheries, Administrative Office Building, Teynampet, Chennai - 600 006.
7.The Superintendent of Police, Ramanathapuram District.
.