Manthena Satyanarayana Raju & Ors. v. The Government of A.P

Order

In all these four writ petitions, as similar questions arise for consideration on similar set of facts, they are heard together and disposed of by this common order. I refer to the facts stated and issues that arise for consideration in Writ Petition No. 11096 of 2006. W.P.No. 11096 of 2006 was originally filed by the petitioners, who are 27 in number and residents of Siddapuram village of Akividu Mandal, West Godavari District seeking a writ of mandamus directing the respondents not to demolish the boundary bunds of the petitioners land as the petitioners are within the criteria laid down in

G.O.Ms.No.120 Environment, Forest, Science and Technology (For- III), dated 4th October, 1999. After filing the writ petition, on the ground that most of the bunds and trees on the petitioners’ land were removed, the petitioners filed W.P.M.P.No.16581 of 2006 for amendment of the writ petition to the following effect: “to direct the respondents either to restore the removed bunds of the petitioners’ land or to pay compensation for the illegal removal of bunds of the petitioner.” Similarly, W.P.M.P.Nos. 16574, and 16584 of 2006 have been filed in Writ Petition Nos. 10816 and 10840 of 2006 for amendment of the prayer to the same effect. For the reasons stated in the affidavits filed in support of the applications for amendment, I permit the amendment and allow W.P.M.P.Nos.16581 of 2006, 16574 and 16584 of 2006. The affidavit in support of the writ petition has been filed by Shri Bhupathi Raju Soma Raju, 24th petitioner herein, on behalf of all the petitioners. It is the grievance of the petitioners, particularly, owners and possessors of various parts of the land covered by several survey numbers of Siddapuram village of Akividu Mandal of West Godavari District that though Siddapuram village is covered by notification issued under the Wild Life (Protection) Act, 1972, but the said village is a belt village and not a bed village. The notification issued in G.O.Ms.No.120, dated 14.10.1999, itself permits the continuance of pisci-culture which is existing on the date of notification by traditional methods of fishing, and, though they fall within the criteria notified in the notification, steps were being taken to demolish the bunds. It is stated that the petitioners come within the criteria laid down in G.O.Ms.No.120 dated 14.10.1999 and as such, the respondents cannot interfere with their activity of pisciculture and the Government cannot take unilateral action and destroy their property in violation of their fundamental rights guaranteed under Articles 19 and 21 of the Constitution of India. It is stated that, each of the petitioners’ lands were demarcated by bunds and the respondents are trying to remove their bunds and the trees grown on the said areas without any authority of law, whatsoever. A detailed counter affidavit is filed by the respondents stating that the petitioners are carrying out pisciculture in violation of the conditions laid down in the final notification dated 14.10.1999 of Kolleru Wild Life Sanctuary and the lands in question are included within the limits and boundaries of Kolleru Wild Life Sanctuary. While giving the details of the extents of lands and Survey numbers of different petitioners, it is stated that the said bunds are constructed in a total area of Ac. 103.50 cents and the said lands fall in the contour below +5 MSL in Kolleru Wild Life Sancturary declared in G.O.Ms.No.120 dated 14.10.1999. It is averred that that there are fish tanks constructed by the petitioners and the petitioners are doing pisciculture by utilizing chemicals, fertilizers, De-oiled Brawn etc. and mechanized boats are being used causing heavy pollution and hazards to the human life and wild life disturbing the ecological balance and the bunds constructed by the petitioners are obstructing water flow of old Voyyeru canal from Pedakapavaram village. It is stated that the activity of pisciculture of petitioners by constructing bunds is in violation of the Wild Life Sanctuary notification issued in G.O.Ms.No.120, dated 14.10.1999 and further the validity of the said notification has already been upheld by this court and the Apex court and steps were already being taken for demolition of the bunds as per the directions of the Central Empowered Committee and the Honourable Supreme Court. It is stated that the directions were issued by the Honourable Supreme Court to demolish the bunds in a time-bound programme and the objections of the petitioners are not sustainable to obstruct such demolition. Further, it is stated that several opportunities were given to the petitioners by issuing public notice dated 16.2.2006 and hearing was provided by the Central Empowered Committee constituted by the Honourable Supreme Court by giving wide publicity in the newspapers for the public hearing conducted at Hyderabad on 11.3.2006. It is stated that in spite of such opportunities, as they did not choose to utilize the same, steps were being taken for demolition in implementation of the directions of the Apex Court. Heard the elaborate arguments advanced by Shri Challa Sitaramaiah, learned Senior Counsel, on behalf of the petitioners and the learned Advocate-General on behalf of the respondents. It is submitted by the learned counsel for the petitioners that the notification issued in G.O.Ms.No.120 dated 4.10.1999 is a subordinate piece of legislation and the Government and its officers are bound by the said G.O. It is submitted that as the petitioners are doing pisciculture by traditional methods, the respondents have no authority to demolish the bunds, that too, without any prior notice and opportunity to the affected parties. It is submitted that even according to the notification, the right to pursue avocation of pisciculture and fishing by traditional methods is permitted and as such, the removal of bunds of the fish ponds is deprivation of the petitioners’ interest and property and is arbitrary, illegal and in violation of fundamental rights guaranteed under Constitution of India. It is stated that the said illegal and arbitrary action of the respondents is taking away means of their livelihood in violation of the right guaranteed under Article 21 of the Constitution of India. In support of his contention, learned counsel has placed reliance on the decisions in Henry Hill & Co. v. Sheoraj Rai [1] , Santhosh Jayaswal v. State of M.P. , Ram Gopal Bysack and [2] others (Plaintiffs) v. Nurumuddin alias Noor Mahamed Mundul (Defendant) , State of T.N. v. Sri Ambalavana Pandara [3] Sannadhi Adheenakartha [4] , Madan Gopal v. Dist. Magistrate [5] , Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning & Weaving Co. Ltd. And others [6] , Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others [7] , Jilubhai Nanbhai Khachar v. State of Gujarat and another [8] , and several other decisions including the decisions of Foreign Courts, and also a decision of the Supreme Court in Ramana v. I.A. Authority of India [9] to the effect that in a rule of administrative law, the executive authority must adhere rigorously to the standards by which it professes its actions to be judged. Further, the pisciculture on the private patta lands by traditional methods is permissible and any interference with such activity of their avocation will amount to deprivation of their property itself contrary to the rights guaranteed under the Constitution. In Henry Hill & Co. v. Sheoraj Rai (1 supra), the Supreme Court held thus: “In my opinion, the question in all such cases must be determined by reference to the nature of the right claimed and proved to have been exercised. If it is a mere right to fish not excluding the lawful owner, it would appear to be an easement within the description of the word in the Limitation Act and can be If it is an acquired by 20 years’ uninterrupted enjoyment. exclusive right of fishery, it is, in my opinion, an interest in immovable property and can be acquired by 12 years’ adverse possession involving an ouster of the rightful owner. Such a right in my opinion, contains all the essential elements of property and even if it may properly be described as a profit a prendere it has also the distinctive features of an interest in immoveable property. In my opinion, even if S.26 of the Act should be applicable, this would not bar the operation of Art.144 and S28 if the right came under both descriptions.” I n Santhosh Jayaswal v. State of M.P. (2 supra), the Supreme Court held thus: “Since the definition of “immovable property in M.P.General Clauses Act includes benefits to arise out of land and things attached to the earth, the question is whether the right to catch fish is a benefit to arise out of the land. It cannot be controverted that catching fish from the tank would be a benefit arising out of the land. Therefore, it is an immovable property. Even though it is profit a prendre, since it is a benefit to arise from the land, it is an immovable property. If its value is more than Rs. 100 or the lease is on year to year basis, it is a compulsorily registrable instrument under Section 17(1)© of the Indian Registration Act. “ I n Ram Gopal Bysack and others (Plaintiffs) v. Nurumuddin alias Noor Mahamed Mundul (Defendant), (3 supra), it was held that a Jalkar, or right of fishery, as being a benefit arising out of land covered by water, comes within the definition of “immovable property” set out in the General Clauses Act (I of 1868) and, is therefore, immovable property under Section 106 of the Transfer of Property Act. I n State of T.N. v. Sri Ambalavana Pandara Sannadhi Adheenakartha (4 supra), the Supreme Court has held thus: “…………………………….Land is a source of livelihood. There is a strong linkage between the land and social status. The strip of the land on which they till and live assures them social justice and dignity of person providing near decent means of livelihood. So, economic empowerment is their fundamental right. They became the ryots and, ever since, remained in possession as ryots. Therefore, they are entitled to ryotwari patta.” I n Madan Gopal v. Dist. Magistrate (5 supra) the Honourable Supreme Court held that the right to hold and enjoy the property is a cherished right; and since requisitioning of the same deprives the owner of the right to hold and enjoy it as he likes, it is difficult to assume that the legislature would have intended to deprive the owner or possession of this right without notice and hearing. I n Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning & Weaving Co. Ltd. And others (6 supra), the Honourable Supreme Court observed thus: “ Article 31 in my opinion, is wider than Article 19(1)(f) which confers upon a citizen only the right to acquire, hold and dispose of property and is different in scope and content. Article 31 is self-contained and (1) refers to deprivation of property in general. Acquisition or taking possession in (2) are different modes of deprivation and are comprehensive enough to include all forms of taking away rights of property. Having regard to the setting in which article 31 is placed, the word ‘property’ used in the article must be construed in the widest sense as connoting a bundle of rights exercisable by the owner in respect thereof and embracing within its purview both corporeal and incorporeal rights. The word ‘property’ is not defined in the Constitution and there is no good reason to restrict its meaning. Whether the facts in a given case amount to deprivation of property within the meaning of article 31 will depend upon the circumstances of each case and it is not possible, in the nature of things, to lay down any inflexible test which may be universally applicable. When it can be shown that the statute substantially interferes with the right of enjoyment of property, it will, in my opinion, be hit by article 31(2) and declared void, unless compensation is provided.” I n Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others (7 supra), the Honourable Supreme Court observed thus: “ The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them” I n Jilubhai Nanbhai Khachar v. State of Gujarat and another ( 8 supra), it is observed thus: “…………………….Article 300-A gets attracted to an acquisition or taking possession of private property, by necessary implication for public purpose, in accordance with the law made by Parliament or a State Legislature, a rule or a statutory order having force of law. It is inherent in every sovereign State by exercising its power of eminent domain to expropriate private property without owner’s consent. Prima facie, State would be the judge to decide whether a purpose is a public purpose. But, it is not the sole judge. This will be subject to judicial review and it is the duty of the court to determine whether a particular purpose is a public purpose or not. Public interest has always been considered to be an essential ingredient of public purpose. But every public purpose does not fall under Article 300-A nor every exercise of eminent domain an acquisition or taking possession under Article 300-A. Generally speaking preservation of public health or prevention of damage to life and property are considered to be public purposes. Yet deprivation of property for any such purpose would not amount to acquisition or possession taken under Article 300-A. It would be by exercise of the police power of the State. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law; there is no deprivation. Acquisition of mines, minerals and quarries is deprivation under Article 300-A.” On the other hand, it is submitted by the learned Advocate- General that in this case, the activity being undertaken by the petitioners is contrary to the declaration of sanctuary notified by the Government under Section 26-A of the Act. It is submitted that even as per the notification and the judgment of this court, the pisciculture, which was existing in the private lands as on the date of publication of notification is permitted, provided, the fishing is done in traditional methods without causing environmental hazard till the Government acquires such private lands. It is submitted that in these cases, there is no material at all to show that such a pisciculture was existing as on the date of notification and no material is placed in support of the same. It is also further submitted that there is no specific averments with regard to existence of bunds as on the notified date and the allegations of the petitioners that they are within the criteria as per the notification are vague. Further, it is submitted by the learned Advocate-General that in spite of the repeated public notices, the petitioners have failed to remove the bunds and the Central Empowered Committee which was constituted by the Honourable Supreme Court has also give wide publication for hearing of the objections and submitted its report for removal of such bunds and based on the same, directions were issued by the Honourable Supreme Court for removal of the bunds within a time-frame. It is further submitted that the pisciculture was not existing as on the date of notification and further, the petitioners are doing the pisciculture by utilizing chemicals, fertilizers, de-oiled bran and using mechanized boats causing heavy pollution and disturbing the wildlife resulting in ecological imbalance and as such, it cannot be said that they are within the criteria notified in G.O.Ms.No.120, dated 4.10.1999. The Wild Life (Protection) Act, 1972 is the Central piece of legislation, which was passed basing on the resolutions of the State Legislatures including the State of Andhra Pradesh under Clause (1) of Article 252 of the Constitution of India. Prior to the said Act, the Wild Birds and Animals Protection Act, 1912 was in force. But, on the ground that the said legislation had become completely outmoded, the present Act came into force to provide for the protection of wild animals, birds and plants and for matters connected therewith or ancillary or incidental thereto with a view to ensure ecological and environmental security of the country. In fact, in the Statement of Object and Reasons of the Wile Life (Protection) Act, 1972, the rapid decline of India’s wild animals and birds, one of the richest and most varied in the world, has been a cause of grave concerned, and, some wild animals and birds have already become extinct in this country and others are in the danger of being so, was taken note of. The Kolleru Wild Life Sanctuary is a notified Sanctuary under Section 26-A of the Wild Life (Protection) Act, 1972 covering an area of 308.55 sq. kms or 30,855.20 hectares. The boundary description is given and the boundary runs along the contour at +5MSL as shown in the map. The said notification was issued by the Government vide G.O.Ms.No.120 EF&ST(For.III) Department dated 4.10.1999. At the first instance, Fishermen Cooperative Societies and Agricultural Small Farmers Association and some others have approached this Court in Writ Petition Nos. 33587 of 1998 and 23210 of 1999 seeking relief of cancellation of notification of Kolleru Wild Life Sanctuary as it is said to be affecting their livelihood. While upholding the validity of the said notification, a Division Bench of this Court has directed the respondents to take adequate steps for stoppage and regulation of effluents discharged from the industries and municipalities into Kolleru lake and strictly adhere to the standards laid down by the Ministry of Environment, Government of India the purpose of preservation and maintenance of the lake and ecology in accordance with law and State shall make all endeavours to bring back Kolleru Lake to its prestine glory. Further directions were issued that no pisci culture/aquaculture/shrimp culture should be permitted to be undertaken within the Kolleru Lake sanctuary and only traditional methods of fishing as directed in G.O.Ms.No.120 dated 4.10.1999 should be permitted and also directed that all encroachments of Kolleru lake bed area shall be removed. An application came to be filed before the Central Empowered Committee by Mr.Pranay Waghray, Executive Director, Nallamalai Foundation and others, on which, the Central Empowered Committee issued directions to the Chief Secretary, Government of Andrha Pradesh to carry out demolition of fish tanks of 100 acres and above size and aggrieved by the same I.A.Nos. 1486-87 came to be filed before the Honourable Supreme Court on which the Honourable Supreme Court has issued directions to the Central Empowered Committee to hear the issues regarding the pisciculture activities in Kolleru Wild Life Sanctuary and submit report. The said report was submitted to the Honourable Supreme Court, which after consideration of the same issued the following directions by order dated 10.4.2006 in I.A.No.1486-87 in Writ Petition (Civil) No.202/1995: “For the above reasons, we direct the State government and its officers to implement the directions of CEC vide para 54 of its report dated 20th March, 2006. We make it clear that the use or for pisciculture shall be stopped transportation of inputs immediately. We, further, clarify that the demolition of all fish tanks in a time-bound manner shall commence with effect from April, 20, 2006 as indicated vide para 54(ii). Accordingly, the interim order granted by this Court in I.A.Nos. 1486-1487 in W.P. © No.202 of 1995 shall stand vacated.” When the steps were being taken in pursuance of the directions of the Apex Court for demolition of the bunds, which were constructed contrary to the notification issued under Section 26-A of the Wild Life (Protection) Act and the directions of this Court in the earlier writ petition, and which were obstructing the flow of water into the lake, these writ petitions came to be filed. Before adverting the various elaborate contentions advanced by the learned counsel on both sides, it is necessary and fundamental to decide whether the petitioners’ claim falls within the criteria notified by the Government in the final notification under Section 26-A of the Wild Life (Protection) Act, 1972. In the final notification issued in G.O.Ms.No.120, dated 4.10.1999, while notifying the Kolleru Wildlife Sanctuary, what is permitted is only a pisciculture, which was existing in private lands as on the date of notification by traditional methods alone without causing environmental hazard till the State acquires such private lands. A Division Bench of this Court in Dr.T.Patanjali Sastry v. Chairman, Andhra Pradesh Pollution Control Board [10] upheld the validity of the notification issued in G.O.Ms.No.120, Environment, Forests, Science and Technology (For.III) Department, dated 4.10.1999 and directed to take adequate steps for stoppage and regulation of effluents by strictly adhering to the standards laid down by the Ministry of Environment, Government of India and further held that no pisciculture, aqua culture of shrimp culture should be permitted to be undertaken within the Kolleru Wildlife Sanctuary and only traditional methods of fishing as directed in G.O.Ms.No.120, dated

4.10.1999 should be permitted. The Central Empowered Committee, which is constituted by the Honourable Supreme Court, after elaborate enquiry and issuing notices which were widely published in the print media and after conducting public hearings as ordered by the Apex Court, has issued the following directions in paragraph 54 of the report dated 20.3.2006: “(i) use or transportation of inputs for pisciculture such as chemical fertilizer, farmyard manure, poultry manure, DOB, oil cakes etc. shall not be allowed in the Kolleru Wildlife Sanctuary; (ii) all fish tanks constructed inside the sanctuary shall be demolished in a time bound manner starting from the big to the smaller ones. The tanks of area of more than 100 acres (cumulative) shall be demolished within a period of 15 days and the remaining tanks shall be demolished by 31st Marcy, 2006. (iii) the details of the actual beneficiaries of the illegal activities taken up in the area and the profit made by them from such activities and estimated cost of the rehabilitation of the sanctuary area shall be made available to the CEO within a period of 60 days after considering the objections filed by the identified beneficiaries before the State Government and/or the CEO and giving them opportunity of being heard: (iv) the details of the persons who are found to be involved in instigating or destructing in implementation of the Hon’ble Court’s directions along with full details shall be made available to the CEC in a sealed cover by the Collectors of West Godavari and Krishna Districts. (v) a fortnightly report shall be filed before the CEC about the progress of the demolition of the tanks; and (vi) the IA No. 1486-1487 filed by M/s Kolleru Industries Private Limited is listed for hearing before the Hon’ble Supreme Court on 24.3.2006. Till the matter is heard by the Honourable Supreme Court, the demolition of the tank located on the private land owned by M/s Kolleru Industries Private Limited shall not be carried out. However, directions at clause (i) above shall be strictly complied with.” Further, after the said report was submitted to the Honourable Supreme Court, by order dated 10.4.2006, the Honourable Supreme Court issued directions as contemplated in the report of the Central Empowered Committee, particularly, with reference to directions in paragraph 54 of the report of Central Empowered Committee. Even in the latest order of the Supreme Court dated 10.4.2006, the Honourable Supreme Court has held that the right of the local fishermen to do fishing by traditional methods is not taken away, but aqua culture in the form of any tank is prohibited. Further, wherever pisciculture was existing in the private patta lands as on the date of notification, fishing in traditional methods is permitted without causing environmental hazard till the Government acquires such private lands. With reference to the above observation, if the plea of the petitioners is considered, except saying that they fall within the criteria and doing the avocation of pisciculture by traditional methods. There is no specific submission with regard to existence of their pisciculture as on the date of notification. There is also no material placed before this Court to arrive at the conclusion that they are doing pisciculture by traditional methods. Per contra, in the counter-affidavit, it is categorically stated that the petitioners have constructed fish tanks by raising bunds and are doing pisciculture by using hazardous materials like chemicals, fertilizers, De-Oiled Brawn and also using mechanized boats for the purpose of their activity. In the absence of any material to show that the pisciculture was existing as on the date of notification issued under Section 26- A of the Wild Life (Protection) Act and further in the absence of any material to show that they are doing pisciculture by traditional methods and in the light of the averments in the counter affidavit that the petitioners are using chemicals, fertilizers and De-Oiled Brawn, which is resulting in environmental harazrd in the Kolleru Wild Life Sanctuary, the contention of the petitioners that their activity of pisciculture is within the criteria cannot be accepted. What is permitted in the notification dated 4.10.1999 is the existing piscicuslture as on the date of notification provided, the same is being done by traditional methods without resulting environmental disturbance. When, it is stated in the counter- affidavit that the petitioners have raised bunds and using chemicals for the purpose of pisciculture, the said activity is in gross violation of the statutory notification issued under the Wild Life (Protection) Act, 1972, particularly in the absence of any material to show that such pisciculture activity existed as on the date of notification and the same was being carried out traditionally. Further, the notification is upheld by a Division Bench of this Court and when petitions were moved before the Honourable Supreme Court, a Central Empowered Committee was constituted and after making elaborate enquiry, it submitted report and on submission of such a report, the Honourable Supreme Court has issued further directions for carrying out the directions in the report for removal of the bunds within a time-frame and when such bunds, which are constructed contrary to the notification, are removed, it is not open for the petitioners to raise such an issue before this court in this petition filed under Article 226 of the Constitution of India. Though number of judgments have been cited by the learned counsel for the petitioners in support of his argument that the petitioners cannot be deprived of their avocation and property in an arbitrary and illegal manner, but, the same need to be considered only in the event of establishing that the bunds of the petitioners were in existence as on the date of notification under Section 26-A of the Wild Life (Protection) Act, 1972 and that the petitioners are carrying on fishing activity by way of traditional methods. No material is placed on record to show that the bunds of the petitioners were in existence as on the date of the notification under Section 26-A of the Act and they are doing the pisciculture by way of traditional methods. On the contrary, it is stated in the counter affidavit filed by the respondents that the pisciculture is undertaken by the petitioners contrary to final declaration under Section 26-A of the Act and the directions of a Division Bench of this Court as also the Apex Court, and, therefore, it is not open for the petitioners to re- agitate the said issues in this writ petition. Whether the pisciculture was existing or not as on the date of notification, whether the petitioners are doing pisciculture by traditional means and whether the petitioners have constructed fish tanks by raising bunds contrary to the notification are the serious factual disputes, which cannot be gone into in a writ petition filed under Article 226 of the Constitution of India. Further it is stated that demolition of bunds was undertaken based on the report submitted by the Central Empowered Committee and the further directions issued by the Apex Court in order dated 10.4.2006 in I.A.Nos. 1486-87 in Writ Petition ( C ) No. 202 of 1995. Writ Petition No. 8056 of 2006 and batch has earlier been filed before this Court for a declaration that the tanks of the petitioners therein are not in violation of the notification issued G.O.Ms.No.120, dated 4.10.1999 and that the action of the respondents therein in threatening to demolish the tanks is without jurisdiction, arbitrary and violative of the Principles of Natural Justice, and, this Court by orders dated 28.4.2006 dismissed the said writ petitions. Aggrieved thereby, writ appeals in W.A.No.531 of 2006 and batch has been filed and a Division Bench of this Court dismissed the said appeals, thereby, confirming the orders in writ petitions. In that view of the matter no directions can be issued either for restoration of bunds or for grant of compensation as claimed by the petitioners. As the facts and reliefs claimed are similar, all the four writ petitions are dismissed. No costs. _____________________ 04---01---2007 R.SUBHASH REDDY, J. VR [1] [2] [3] [4] [5] [6] [7] [8] [9] AIR 1923 Patna 58 (1995) 6 SCC 520 I.L.R. Vol.XX Calcutta Series 446 (1997) 9 SCC 313 AIR 1972 SC 2656 (1954) SCR 674 1991 Supp (1) SCC 600 1991 Supp (1) SCC 596 AIR 1979 SC 1628 [10] 2001(5) ALT 315