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IN
THE SUPREME COURT OF Appellants:
Hon'ble Judges: Counsels: Subject: Catch Words Acts/Rules/Orders: Cases Referred: Casenote JUDGMENT S.H. Kapadia, J. Page 1996 1. 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. 2. 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 v. Chairman, Andhra Pradesh Pollution Control
Board and Ors. reported in MANU/AP/1510/2001. 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 3. Contour level at Area
Mean Sea Level
(MSL)
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)
4. It is found between
the alluvial planes of river 5. 6. 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 7. 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. 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. 8. 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 9. 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 Page 1998 package. Consequently, the government
should first acquire the rights of the objectors before ordering demolition of
the fish tanks/bunds. FINDINGS 10. 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 1.1973. 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 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. 11. 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. - No person shall destroy,
exploit or remove any wild life from a sanctuary Page 1999 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.... 12. 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 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 v.
Government of Andhra Pradesh and Ors. reported in MANU/AP/0312/1998.
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, (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. Page 2000 (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 Under Section 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 Under Section 27 to 34 and other provisions of the Wild
Life (Protection) Act, 1972. (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. 13. 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 Page 2001 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. 14. We, therefore, are of
the opinion that having regard to the larger public interest and in view of the
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. 15. 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. 16. 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 Page 2002 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,
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. 17. 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 18. Accordingly, all I.As/writ petitions/objections filed by various objectors, shall stand disposed of. |