Venkatarama Aiyar, J. -
(1.) THIS is a petition under Article 226 of the Constitution for issuing a 'writ of certiorari' or other appropriate writ to quash an order of the State of Madras dated 13 -3 -1951. The second respondent is the Rajah of Ramanathapuram, whose Zamindari was one of the estates permanently settled under Regulation 25 of 1802. On 1 -7 -1946 he granted a lease to the petitioners of the right to fish chanks in the Gulf of Mannar and Palks Bay opposite the coast of the Zamindari for a period of ten years on an annual rent of Rs. 14,000. The Legislature of the Province of Madras passed the Madras Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948), hereinafter referred to as the Act, abolishing the estates within the State of Madras and the Ramanathapuram Zamindari was notified in accordance with the provisions of that Act on 7 -9 -1949; and the result of that Notification was that under Section 3 of the Act the entire zamindari vested in the State of Madras.
Acting under Section 20 of the said Act, the State of Madras terminated by its proceedings dated 3 -3 -1951 the lease in favour of the petitioners dated 1 -7 -1946 and sent the following communication dated 13 -3 -1951 to them: "The lease of chank fisheries off the coast of Ramanathapuram granted by the Rajah of Ramanathapuram to Messrs. A. M. S. S. V. M. & Co., Kilakkarai is cancelled under second provision (proviso?) to S. 20, Estates Abolition Act, the Estate Manager, Ramanathapuram, is requested to hand over the Chank Fisheries to the Government Fisheries Department," The present application has been taken out by the lessees for quashing this order as unconstitutional and illegal. The State of Madras who is the first respondent contests the application, while the Rajah of Ramanathapuram, the second respondent, supports it.
On behalf of the petitioners, Mr. M.R.M. Abdul Karim urged the following contentions:
1. The Act, in so far as it relates to fisheries in the seas is beyond the competence of the Madras Legislature, as the seas are outside the territory of the State.
(2.) THE Act is also incompetent as being legislation on interstate trade and commerce which is exclusively within the competence of the Union under Entry 42 of the Union List in Schedule 7 to the Constitution. 3. Even if the Act is a valid piece of legislation, the termination of the lease on 13 -3 -1951 is bad because three months' notice was not given as required by Section 20 of the Act.
2. It is necessary for a correct appreciation of the true legal position to relate the history and nature of the chank fisheries off the coast of Ramanathapuram which form the subject -matter of this application.
Between the main land of India forming the southernmost portion of it and the island of Ceylon which lies to the east and south of it, there lies a large expanse of sea water, the northern sector of which is termed the Palk Bay and the southern, the Gulf of Mannar. They are divided by the island of Rameswaram and a continuous line of coral reefs running east to west on which runs the causeway known as the Ramasethu or Adams Bridge, leading to the main land of Ceylon. The island of Rameswaram is separated from the main land of India by a narrow strait known as the straits of Pamban, 1350 yards broad. The Palk Bay is roughly 70 miles long and 50 or 60 miles broad and is bounded on the north and west by the Districts of Tanjore and Ramanathapuram which form part of the State of Madras, on the south by the Pamban Straits, island of Rameswarara which belongs to India and the Ramasethu and on the east by the island of Ceylon.
On the north -east it opens into the Bay of Bengal, the passage at that point not being more than 1/9th of the circumference of the Bay. Navigation in this gulf is difficult by reason of rocks, reefs and shoals of which it is full. The southern sector called the Gulf of Mannar runs southward from the Rameswaram -Ramasethu line and is bounded on the west by the Districts of Ramanathapuram and Tirunelveli which form, part of the State of Madras and in the east by Ceylon. In the south it opens into the Indian Ocean. The breadth of the gulf at the northern end is about 17 miles, while at the southern approach to the Indian Ocean the distance between Cape Camorin in India and Point De Galle in Ceylon is about 200 miles. The length of the Bay is about 130 miles. Thus, it will be seen that the Palk's Bay is practically land -locked and partakes of the character of inland waters and that the Gulf of Mannar in its northern portion off the coast of Ramanathapuram, which is what we are concerned with in this application, is of the same character.
From time immemorial, both these gulfs have been famous for their pearl fisheries and chank fisheries. The rocks and reefs in which they abound have furnished excellent breeding ground for pearl oysters. On the bottom of these gulfs are sand -beds of a special kind called "Puchi Manal" which breed worms on which chanks thrive. Beds of pearl fish and chank fish are to be found in abundance scattered all over the area and they are marked in maps prepared for the Fisheries Department. The chank beds are mostly at a depth seldom exceeding 50 feet, often less and some times more and they lie at varying distances from the shore, the farthest of them being 20 miles from the Indian Coast.
There are similar beds off the coast of Ceylon. The chanks, apart from their worth are sacred sankha, have considerable commercial value as they are largely used for ornaments in Bengal, Assam and Tibet; and pearl fisheries and chank fisheries have accordingly been from the earliest times important and lucrative trades in this area. The Sovereigns of the country considered themselves as the exclusive owners of the beds of pearl oysters and chanks, granted licences for their exploitation and levied royalty thereon. At the dawn of history the coastal area on the Indian side formed part of the Pandyan Kingdom. It appears from the writings of ancient writers like the authors of 'Periplus Erythraei Maris' (about 80 A. D.) and Ptolemy (about 140 A. D.) that a place called Korkai was the headquarters of the pearl fishery of the Pandyan Kings. Kalidasa mentions that the Pandyan King offered as his tribute "superior pearls obtained from the sea at its confluence with Tambaraparani" (Raghuvamsa, Canto 4, verse 50).
In the middle ages Kayal became the centre of the pearl fishery and "according to Friar Jordanus, no less than 8000 boats were employed in the Fisheries of Tinnevely and Ceylon" (District Gazetteer, Tirunelveli, Vol. I page 230). After the Pandyas, the Nayaks became the Sovereigns of the country and they recognised the title of Rajah of Ramanathapuram who claimed descent from ancient Royal Houses to the coastal territory and also granted to him the right of levying royalties on chank fisheries off the coast. The right of fishery over the rest of the Indian Coast was granted to the Dutch.
The Nawab of Arcot supplanted the Nayaks in the middle of the 18th century and in 1792 the East India Company succeeded to their rights. The Madras Permanent Settlement Regulation 25 of 1802 was then passed under which the Government entered into engagements with Zamindars fixing a permanent peshkush. The Zamindari of Ramanathapuram was one of the estates so settled and in fixing the peshkush the right of chank fisheries was included in the assets of the zamindar being the 8th item described as "chank royalty". In accordance with this Sanad, the successive proprietors of the Ramanathapuram Estate continued in enjoyment of the chank fisheries leasing the same from time to time. It may be mentioned that in 1803 the chank royalty of the Rajah was given as security to the Government for payment of peshkush and in 1874 it was attached for arrears thereof. In 1899 and 1900 the Government itself took a lease of these fisheries from the Rajah of Ramanathapuram. The income from the fisheries was at all times one of the valuable assets of the estate.
(3.) WITH this survey of the history and nature of the chank fisheries off the coast of Ramanathapuram, we may proceed to examine the contentions urged on behalf of the petitioners and the second respondent.
It is firstly argued that the Act in so far as it relates to the fisheries in the seas is extraterritorial in character and beyond the legislative jurisdiction of the State and that it is, therefore, void to that extent or at least void as regards fisheries beyond territorial waters. To this, the learned Advocate General replies firstly that the impugned Act is not a law in respect of fishing or fisheries in the seas, but in respect of land and land tenures, and that it is exclusively within the jurisdiction of the State and that secondly the State has power to legislate on fishing and fisheries within the territorial waters and that the fishing areas in question in this application have come to be recognised by reason of long possession and international recognition as part of the territorial waters.;