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CASE NO.: Writ Petition (civil)  202 of 1995

PETITIONER: T. N. Godavarman Thirumalpad

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 10/04/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

I.A. Nos.1486-87 in Writ Petition (C) No.202 of 1995 With (I.A. No.1492 in WP(C) No.202/95, I.A. No.1508 in WP(C)  No.202/95, WP(C) No.95/2006, WP(C) No.111/2006, I.A.  No.1497-1498 in WP(C) No.202/95, I.A. No.1509-1511 in  WP(C) No.202/95, I.A. No.1514 in WP (C) No.202/95, I.A.  No.1515 in WP (C) No.202/95, I.A. No.1523 in WP(C)  No.202/95, I.A. No.1524 in WP(C) No.202/95, I.A.  No.1525 in WP(C) No.202/95, I.A. No.1531 in WP(C)  No.202/1995, WP(C) No.155/2006)

KAPADIA, J.         Development needs of the present without  compromising the ability of the future generations to  meet their own needs is called ’sustainable  development’, a concept based on the principle of  inter-generational equity.

       In this batch of cases the common issue that  arises for consideration is the validity of the  recommendations made by Central Empowered  Committee (for short, ’CEC’) in its Report dated 20th  March 2006 which concerns implementation of the  notification issued by State of Andhra Pradesh dated  04.10.1999 under section 26A of the Wild Life  (Protection) Act, 1972 whose validity has been upheld  by the decision of the Andhra Pradesh High Court  dated 30th July, 2001 in the case of Dr. T. Patanjali  Sastry, President, Environment Centre  vs.   Chairman, Andhra Pradesh Pollution Control  Board and ors. reported in 2001 (5) ALT 315.  By the  impugned recommendations CEC has issued  directions for demolition of all fish tanks constructed  inside the Kolleru Wild Life Sanctuary in a time  bound manner, as indicated therein.  CEC has also  issued directions prohibiting use or transportation of  inputs for pisciculture in the said sanctuary. The  details of the inputs are given in the report.

NATURE OF KOLLERU LAKE         Kolleru Lake is one of the largest shallow fresh  water lake in Asia located between the delta of  Krishna and Godavari rivers in the State of Andhra  Pradesh.  It serves as a natural flood balancing  reservoir for the two rivers.  It receives water from 67  inflowing drains and channels.  It sustains flora and

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fauna and people living around it. The area of the  lake at various contour levels is as under:

Contour level at  Mean Sea Level  (MSL) Area At + 10 MSL 901 sq. km. (2.25 lakh acres) At + 7 feet MSL 675 sq. km. (1.69 lakh acres) At + 5 feet MSL 308 sq. km. (0.77 lakh acres)

       It is found between the alluvial planes of river  Godavari and river Krishna due to natural geological  formation covering 2 mandals in West Godavari  district and 7 mandals in Krishna district.   Ecologically it is a wet land ecosystem.  In its mean  season, the lake has mean water level of 3 feet above  the mean sea level, popularly known as plus 3  contour.  The water surface area in the contours of  the lake vary, depending upon the seasonal flow of  water into the lake.  In the normal monsoon, the lake  extends from plus 7 contour to plus 10 contour.  At  plus 3 contour level the lake spreads over 70 sq.  miles.  At plus 7 contour the capacity of the lake is  30 tmc.  At plus 10 contour the capacity of the lake is  54 tmc, covering an area of 348 sq. miles. The peak  level inflow into the lake is of the order of 1,10,000  cusecs. 4 rivers, 18 drains and 22 irrigation channels  empty out into the lake and the drain Uppteru is the  only outlet to the sea.  There are 122 villages in the  lake area out of which 46 are bed villages and 76 are  belt villages.  In the belt villages, above plus 5  contour, cultivation is being done both in the patta  lands as well as in the government lands on payment  of cist.  The lake supports bio-diversity and high  biomass of fish plankton which constitute the source  of food for birds.

       Kolleru Lake extends over 901 sq. kms. at plus  10 contour.  However, only 308 sq. kms. out of 901  sq. kms. have been declared as wild life sanctuary.   This has been done in order to strike a balance  between the rights of the people living in and around  the lake on one hand and to protect the ecosystem on  the other hand.

       Government of India is the signatory to 1971  Convention of Ramsar (Iran) where it is declared that  Kolleru is a wet land ecosystem of international  importance.  In the said convention it is decided that  encroachments in the lake would not be tolerated.   The said convention is also known as Wet Land  Convention.

REASONS FOR ISSUANCE OF THE NOTIFICATION  DATED 4.10.1999

       The above notification came to be issued under  following circumstances.  Submersion of delta facility  in the upstream area on account of blockage of free  flow of water into the lake caused by encroachers.  

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Further, thousands of land stood converted into fish  tanks resulting in the blockage of the drain system of  Krishna and West Godavari districts which chooses  the said lake as a natural route to sea.  Lakes were  formed by the encroachers over areas ranging from  30 to 400 acres by raising bunds upto the height of  20 to 25 feet above the ground levels and thereby  diminishing the retention capacity of the lake.   Consequently, it has resulted in submergence of  upstream mandals causing huge crop losses.         The notification above-mentioned seeks to  preserve the lake both for the benefit of the migratory  birds and to avoid floods.  The total lake area in  terms of hectares is one lac hectares out of which an  area admeasuring 30,855.20 hectares is constituted  as wild life sanctuary.

ARGUMENTS         The basic argument advanced on behalf of the  objectors is that acquisition is the basis for issuance  of notification/official declaration under section 26A  of the said 1972 Act.  It is submitted that although  final notification has been upheld, the terms and  conditions of the notification indicate that demolition  of bunds can only take place after acquisition by the  government of private lands.  In this connection, it is  urged that apart from government lands the  sanctuary also covers private lands; that, the owners  of these private lands are entitled to construct bunds  in their own lands till the government acquires such  lands. It is submitted that from 1976 upto 4th  October, 1999 permissions to construct bunds have  been given; that huge investments have been made in  the business of pisciculture and that thousands of  employees are working to earn their livelihood from  these activities.  It is submitted that the notification  covers an entire package and acquisition is a part of  that package.  Consequently, the government should  first acquire the rights of the objectors before  ordering demolition of the fish tanks/bunds.

FINDINGS         In order to answer the above arguments we may  briefly state the relevant provisions of Wild Life  (Protection) Act, 1972 which has been enacted to  provide for the protection of wild animals, birds,  plants and for matters connected therewith.  This Act  is enacted by Parliament in exercise of its powers  under Articles 249 and 250 of the Constitution,  pursuant to resolutions passed by Houses of  Legislatures of all States including Andhra Pradesh.   The Act came into force in the State with effect from  1.3.1973.  It may be useful to note the Statement of  Objects and Reasons of the said Act: "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 concern. Some wild animals and  birds have already become extinct in this  country and others are in the danger of  being so. Areas which were once teeming  with wild life have become devoid of it and  even in Sanctuaries and National Parks the  protection afforded to wild life needs to be  improved. The Wild Birds and Animals

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Protection Act, 1912 (Act 8 of 1912), has  become completely outmoded. The existing  State laws are not only out-dated but  provide punishments which are not  commensurate with the offence and the  financial benefits which accrue from  poaching and trade in wild life produce.  Further, such laws mainly relate to control  of hunting and do not emphasize the other  factors which are also prime reasons for the  decline of India’s wild life, namely,  taxidermy and trade in wild life and  products derived therefrom."          Section 2(26) defines "sanctuary" to mean an  area declared, whether under section 26A or under  section 36, or deemed under sub-section (3) of  section 66, as a wild life sanctuary.  Section 2(37)  defines "wild life" to include any animal, butterflies,  fish and aquatic or land vegetation which forms part  of any habitat.  Chapter IV deals with sanctuaries  and national parks.  Section 18 deals with  ’declaration of sanctuary’ by a preliminary  notification with definite boundaries where the  government intends to constitute any area as a  sanctuary, provided it is satisfied that such area is of  adequate ecological significance for protecting or  developing wild life or its environment.  Under section  19 the collector is required to inquire into and  determine the existence, nature and extent of the  rights of any person in or over the land comprised  within the sanctuary.  Section 21 deals with  proclamation by the collector and under section 22  the collector has to make inquiry after service of the  prescribed notices upon the claimants.  Sections 24  and 25 deal with acquisition.  Under section 26A the  State government shall make declaration of an area  as a sanctuary.  After such declaration, any  alteration of the boundaries of sanctuary can be  made only by a resolution passed by the State  legislature.  Section 29 specifically prohibits carrying  out of commercial activity as well as diversion,  stopping or enhancement of the flow of water into or  outside the sanctuary.  Section 29 reads as follows: "29. Destruction, etc., in a sanctuary  prohibited without a permit.  \026 No person  shall destroy, exploit or remove any wild life  from a sanctuary or destroy or damage the  habitat of any wild animal or deprive any  wild animal of its habitat within such  sanctuary except under and in accordance  with a permit granted by Chief Wild Life  Warden and no such permit shall be  granted unless the State Government being  satisfied that such destruction,  exploitation, or removal of wild life from the  sanctuary is necessary for the improvement  and better management of wild life therein,  authorises the issue of such permit\005.."

       The government under section 18 issued  preliminary notification on 25th September, 1995  declaring the areas specified in the schedule as ’wild  life sanctuary’ and by reason thereof the collector of

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West Godavari and the collector of Krishna districts  took steps in implementation thereof to hear and  decide claims and to demarcate the boundary of the  lake and the sanctuary.  The preliminary notification  issued under section 18 and the consequential action  taken by the district collectors came up for  consideration before a learned single judge of the  Andhra Pradesh High Court in the case of  Kunapuraju Rangaraju  vs.  Government of Andhra  Pradesh and others reported in 1998 (3) ALT 215.   By order dated 5.3.1998, the learned single judge  held that no interference with the rights of the  petitioners could take place without a notification  under section 26A.  Accordingly, directions were  given to the State government to take steps for  issuance of such notification.  Pursuant to the said  directions, proclamation under section 21 of the said  Act was issued by the respective district collectors of  the above-mentioned two districts calling for  objections.  After conducting an inquiry under section  22 and after considering all the objections, final  notification as required under section 26A of the Act  was issued on 4.10.1999 which was published in  government gazette on 5.10.1999 determining the  rights of the parties in terms of section 24 in the  following terms: "The existence, nature and extent of rights  as determined by District Collector, Krishna  vide proceedings No. E6/1236/97, Dated:  01-09-1998 and by the District Collector,  West Godavari, Eluru in Rc.No. D6/11717/  96, Dated: 08-08-1999 are as follows: (1) Right to do fishing with traditional  methods using mavus, nets of size (which  does not cause damage to seed but catches  only fish of harvestable size) which will be  specified separately by the Chief Wild Life  Warden of Andhra Pradesh. (2) No person shall form any tank for  Aquaculture or for any other purposes. (3) Wherever Pisciculture was existing in  private lands, as on the date of notification,  fishing in traditional methods shall be  permitted, without causing environmental  hazard, till the Government acquires such  private lands. (4) Right to do traditional Agriculture  without using pesticides and chemicals. (5) Right to use the ordinary boats, without  motor for the movement of the people. (6) Right of way with existing Roads  connecting main habitations and their  maintenances by providing sufficient  number of vents for the roads existing at  the time of Notification of Kolleru Wild Life  Sanctuary U/s. 18 of Wild Life (Protection)  Act, 1972 without permitting new roads  and culverts. (7) Right to maintain existing water courses  and drains necessary to avert submersion  of agricultural lands surrounding Kolleru  lake. (8) Other rights and conditions as specified  U/s. 27 to 34 and other provisions of the  Wild Life (Protection) Act, 1972.

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(9) Electricity connection shall be given for  domestic use only and not for Aquaculture  or any activity connected therewith. (10) The ’D’ form pattas granted or lease of  land allowed in the area in favour of any  assignee or lessee as the case may be  including three societies viz., Gangaraju  Fishermen Co-operative Society,  Srungavarappadu; Sringavarappadu  Fishermen Cooperative Society; Sanjaya  Gandhi Fishermen Co-operative Society,  Srungavarappadu of Krishna District will  be cancelled. The claimants are not entitled  to any compensation under Wild Life  (Protection) Act, 1972 as they were assigned  the lands by the Government on free of land  value. (11) D-Farm pattas to the extent of Ac.  2882.00 cts issued to the individuals as per  G.O.Ms.No. 118 Revenue (Q) Dept., Dated:  24-01-1976 in West Godavari District  wherein they were permitted to construct  fish tanks on the said lands are liable to be  cancelled and these lands will be resumed  under the provisions of Wild Life  (Protection) Act, 1972. These D-Farm patta  holders are not entitled for any  compensation except ex gratia as provided  by the Government. (12) The annual Licences which are being  issued by the Fisheries Department for  Fishery purpose indicating the areas  allotted are to be discontinued. (13) Encroachments in conditional patta  lands of Siddapuram village of Akiveedu  Mandal are to be evicted, (14) The village site Poramboke of  Siddapuram village of Akiveedu Mandal  measuring Ac. 16.67 cts is hereby excluded  from the jurisdiction of the Sanctuary. (15) Any other encroachments activities,  which are not permitted specifically are  liable to be removed/stopped forthwith."

       From the above, it is clear that the right of the  local fishermen to do fishing by traditional methods is  not taken away, but aquaculture in the form of any  tank is prohibited.  Further, wherever pisciculture  existed in private land, as on the date of the  notification, fishing in traditional method is permitted  without causing environmental hazard, till the  government acquires such private lands under the  said 1972 Act.  The right to do traditional agriculture  without using pesticides and chemicals is also  permitted under the notification.  Lastly the  encroachment activities are directed to be stopped,  forthwith.  The final notification, therefore, seeks to  regulate, in public interest and in the interest of  ecology, activities, such as aquaculture, pisciculture,  prawn culture and shrimp culture, basically to  preserve the identity of the lake which otherwise is  likely to become extinct within 12 years.

       We, therefore, are of the opinion that having  regard to the larger public interest and in view of the

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fact that the Notification under section 26A has been  issued pursuant to the orders of the High Court in  the case of Kunapuraju Rangaraju (supra), the  Notification issued under section 26A needs to be  enforced immediately.  We are informed that in the  previous year on account of these bunds/fish tanks  free flow of water into the sea was blocked for 40  days.  In any event, the rights of those fishermen  surviving on a traditional method of fishing have not  been taken away, they have been duly protected.   Only those who had illegally constructed bunds and  who were using harmful manures have been  prevented from doing so by reason of the said  Notification.  The State government has fulfilled its  obligation by issuing such Notification.  When the  rights of the fishermen to do fishing by traditional  methods have not been taken away, and when the  material placed on record before us shows that there  is obstruction to the free flow of water in the lake bed  area due to raising of bunds whereby the retention  capacity of the lake is diminished, the government is  right in regulating the rights under the said  Notification.  If such encroachments are not removed  immediately the right of the farmers in the upstream  mandals to do cultivation would be in jeopardy,  consequently, it is their right to live guaranteed  under Article 21 of the Constitution which is violated.

       Before us it has been repeatedly urged that the  objectors have made huge investments over the  years, that they were permitted to put up bunds  under permissions given by the collector and that  equity demands that a balance be struck between  preservation of the lake and the livelihood of persons  surviving on aquaculture and pisciculture.  It is  further argued that mud bunds constituted a part of  traditional fishing practice and consequently this  Court should not direct demolition of these bunds.

       We do not find any merit in the above arguments  for the following reasons.  Firstly, section 29  specifically prohibits commercial activity inside the  Sanctuary.  It prohibits commercial activity which  diverts, stops or increases the flow of water into or  outside the Sanctuary.  With the issuance of the final  Notification formation of fish tanks for aquaculture or  for any other purpose is prohibited as they obstruct  free flow of water both into or outside the Sanctuary.   Secondly, the Notification dated 4.10.1999 provides a  limited right to carry on fishing inasmuch as it  permits fishing with traditional methods using mavus  and nets.  It expressly, however, prohibits the  objectors from forming any fish tank(s) for  aquaculture or for any other purpose.  It also  expressly provides that wherever pisciculture was  existing on the date of the notification in private  lands, fishing in traditional methods shall be  permitted, without causing environmental hazard, till  the government acquires such private lands.  It also  cancels the pattas granted in the past.  In our view,  therefore, the Notification regulates aquaculture,  pisciculture, prawn culture, shrimp culture etc.   Thirdly, the argument advanced on behalf of the  objectors that mud bunds formation is compatible  with traditional fishing practice and, therefore,

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should be allowed to continue to exist, has no merit.   When a bund is formed in a sanctuary or a lake it  seeks to encapsulate an area which in turn obstructs  free flow of water in the lake bed area.  As stated  above, formation of bund reduces the retention  capacity of the lake.  These formations, if allowed,  would destroy the lake.  In view of the provisions of  section 26A read with section 29 all commercial  activities which seek to destroy the ecology, stands  prohibited.  Compatibility of mud bunds with the  traditional fishing practice in a lake is a concept  different from formation of mud bunds inside the  Sanctuary.  Notification dated 4.10.1999 does not  cover the entire area of the lake.  Out of 901 sq. kms.  of Kolleru lake, an area of 308 sq. kms. alone is  notified as Sanctuary.  This indicates that the  government has balanced the needs of sustainable  development with the livelihood of persons surviving  on the resources of this lake.  Lastly, the preliminary  notification was issued as far back as in 1995 under  section 18 of the Act.  Therefore, the objectors were  put to notice about the future course of action.   Therefore, it is not open to the objectors now to say  that they have made huge investments which would  be lost if the report of the CEC is implemented.  As  stated hereinabove, in the preceding year free flow of  water into the sea was blocked for 40 days.  Such  blocking of water also affects the livelihood of farmers  cultivating lands in the upstream mandals.  The oil  cakes used as manure also pollute the Sanctuary.  It  is true that there are other effluents which also  pollute the lake.  By issuance of the Notification the  government has taken a step in the right direction  and it is not open to this Court to tell the government  as to which of the three effluents in terms of their  discharge should be regulated first in point of time.   In the present case, as stated above, the blockage is  due to discharge of effluents from three sources,  namely, fish tanks in and around the lake containing  high concentration of nutrients, effluents from  municipal drainage and effluents emerging from the  industries located in an around the above two  districts.  Destruction of the fish tanks is one of the  steps taken by issuance of the Notification.  That has  to be done at the earliest point of time, particularly,  before the onset of the monsoon.

       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  transportation of inputs for pisciculture shall be  stopped 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.(C) No.202 of 1995, shall stand vacated.   

       Accordingly, all I.As/writ petitions/objections  filed by various objectors, shall stand disposed of.