Andhra Pradesh High Court - Amravati
Saladi Veerabhadra Rao vs The State Of Andhra Pradesh on 30 September, 2022
Author: M. Ganga Rao
Bench: M. Ganga Rao
THE HON'BLE SRI JUSTICE M. GANGA RAO
WRIT PETITION No.19487 OF 2020
ORDER:
This writ petition is filed to issue a Writ of Mandamus declaring the action of the respondents 2 to 5 in not allowing the petitioners to draw water from new bore wells for supplementing the losses from evaporation, seepage, etc., to their aquaculture fields situated in Cheyyaru Village, Katrinikona Mandal, East Godavari District, contrary to Clause 7.15 of G.O.Ms.No.7, Animal Husbandry, Dairy Development and Fisheries (Fish.II) Department, dated 16.03.2013, which is being illegal and arbitrary.
2. Heard Sri Bokka Satyanarayana, learned counsel for the petitioners and learned Government Pleader for Fisheries.
3. The gravamen of the petitioners is that the 1st petitioner has been cultivating aquaculture in the fish tanks covered by the land extent Ac.4.55 cents situated in Sy.Nos.606 & 507/2; the 2nd petitioner has been cultivating aquaculture in the fish tanks covered by the land extent Ac.2.59 cents situated in Sy.Nos.583-3A, 583 & 382; the 3rd petitioner has been cultivating aquaculture in the fish tanks covered by the land extent Ac.1.80 cents situated in Sy.Nos. 609/2 & 609/3; and the 4th petitioner has been cultivating aquaculture in the fish 2 tanks covered by the land extent Ac.1.00 in Sy.No.612/1D of Cheyyeru Village, Katrinikona Mandal, East Godavari District.
As the income source through the cultivation is meager and not sufficient, they have applied for issuance of permissions before the competent authority for existing aquaculture in the aforesaid lands. Pursuant to the existing aquaculture and as per G.O.Ms.No.7 dated 16.03.2013 and amended G.O.Ms.No.15, Animal Husbandry, Dairy Development and Fisheries (Fish) Department, dated 26.05.2015, permissions were granted for continuation of existing aquaculture by issuance of Certificate of Registration of Existing Fresh Water Aquaculture Farms dated 22.03.2017 with fish and prawns. Now, the crop is also raised and it is in progress. On 16.10.2020, the respondents 3 and 4 were visited their fields and objected the using of newly dug bore wells in the aquaculture area stating that it was contrary to Clause 7.15 of G.O.Ms.No.7 dated 16.03.2013. However, they are cultivating the aquaculture since several years and also applied for regularization of existing fresh water aquaculture ponds by drawing water from irrigation canals and drainage channels by paying water cess as per the Andhra Pradesh Water Tax Act, 1988, but never drawn the water from the bore wells to fresh water aquaculture farm by violating Clause 7.15 of G.O.Ms.No.7 dated 16.03.2013. Moreover, the aqua ponds being filled only with the fresh water for aquaculture 3 and not fit for any salt water, but for the purpose of evaporation and oxygen, they are using bore wells to draw the water once in a week at least 10% per tank as per Clause 7.15 of G.O.Ms.No.7 dated 16.03.2013. But, the respondents 3 and 4, without following the process of law, are objected the using of bore wells and draw the water in their aquaculture area by seizing the bore wells, which is illegal, arbitrary and contrary to Clause 7.15 of G.O.Ms.No.7 dated 16.03.2013.
4. This Court on 20.10.2020, granted interim order following the earlier orders passed by this Court that the petitioners are directed to use the bore wells once in a week for a period of four (4) hours for replenishing the water in their farm. It is also directed that the Officer of the Fisheries Department should also be present to monitor the usage of the water for four hours only and ensure that the bore wells are not used after that. By virtue of the said order, the petitioners are continuing the aquaculture using the bore well water.
5. The 4th respondent - Fisheries Development Officer filed his counter stating that on physical inspection, it is observed that the petitioners were involved in unauthorized culture of L.Vannamei shrimp in saline water conditions, contrary to the permissions accorded for fresh water aquaculture and also the guidelines prescribed vide G.O.Ms.No.15 dated 26.05.2015 and contrary to the 4 permission accorded for fresh water aquaculture and its guidelines. The Clause 7.15 in G.O.Ms.No.7 is applicable only to the farmers doing fresh water aquaculture but not for L.Vennamei shrimp culture to be taken up in saline water conditions within the limits of 0.5 ppt. as no person shall be allowed to do L.Vannamei culture in fresh water/inland waters without permission and contrary to the guidelines prescribed in G.O.Ms.No.15 dated 26.05.2015. However, this Court passed the interim orders on 20.01.2020. But, Clause 7.15 of G.O.Ms.No.7 is not applicable to the petitioners, who are involved in culture of L.Vannamei in saline water conditions. The petitioners have not only violated the basic guidelines prescribed for fresh water aquaculture vide G.O.Ms.No.7 dated 16.03.2013 but also the guidelines exclusively prescribed for L.Vannamei Shrimp culture in fresh water area vide G.O.Ms.No.15 dated 26.05.2015. Therefore, there are no merits in the writ petition.
6. Sri Bokka Satyanarayana, learned counsel appearing for the petitioners, vehemently submits that the petitioners have been carrying on the fresh water fish culture in the tanks since long time and they were granted Certificate of Registration of existing fresh water aquaculture farms as per G.O.Ms.No.7 dated 16.03.2013 as amended by G.O.Ms.No.15 dated 26.05.2015, to carry on the fresh water aquaculture. He further states that in strict adherence to the 5 guidelines issued in G.O.Ms.No.7 dated 16.03.2013 only, the petitioners are using the bore well water as and when water is required in the fish tanks for replenishment and supplementing the losses from evaporation, seepage, etc., only and they never resorted to any shrimp culture much less L.Vannamei and the allegation is made only at the instance of the other aquaculturists in the village.
7. Learned Assistant Government Pleader for Fisheries, while reiterating the averments of the counter, states that the petitioners' fish tanks are registered as per the guidelines issued in G.O.Ms.No.7 dated 16.03.2013 only to conduct fresh water aquaculture, but the petitioners are resorting to unauthorized culture of L.Vannamei shrimp in saline water conditions through water used through bore wells without possessing the required permissions from the competent authority as per the guidelines issued in G.O.Ms.No.15 dated 26.05.2015. He further states that under the guise of interim order granted by this Court, the petitioners are continuously rearing the unauthorized culture of L.Vannamei shrimp in saline water by using the bore well water and letting the waste water into the irrigation channels and thereby causing damage to the paddy crop and also drinking water source as the petitioners are using the chemicals to rear the shrimp culture, but they are not entitled to use bore well water which are saline under the guise of supplementing or 6 replenishing evaporated and seepage water, as per Clause 7.5 of G.O.Ms.No.7 dated 16.03.2013.
8. Having considered the facts and circumstances of the case, submissions of the learned counsel and on perusal of the record, this Court found that the petitioners' lands are being submergible and inundated. The Hon'ble Apex Court and this Court in a catena of decisions categorically held that only the lands which are inundated or submergible are not fit for any paddy or agricultural operations and not fertile and therefore the petitioners are entitled to use the said lands for aquaculture by digging the fish tanks. Following the law laid down by the Hon'ble Apex Court and this Court, the Government of Andhra Pradesh issued G.O.Ms.No.7 dated 16.03.2013 and the same was amended by G.O.Ms.No.15 dated 26.05.2015. Therefore, the petitioners on hand is entitled only to do aquaculture in the fish tanks in strict adherence to the guidelines issued in G.O.Ms.No.7 dated 16.03.2013 as amended by G.O.Ms.No.15 dated 26.05.2015.
9. As per the averments of the writ affidavit, the lands of the petitioners are submergible and not fit for paddy cultivation and the agriculture is not profitable. They dug the fish tanks in the subject lands and the same were registered as existing fish tanks only to carry out the fresh water aquaculture in the tanks. For doing fish culture in the tanks, the petitioners state that they are using the canal water and 7 letting the waste water into the drain, for which they are paying water tax to the Government.
10. When the lands are submergible or inundated and aquaculture is being taken up by the canal water, the question of digging bore wells even for agricultural purposes does not arise even though the bore wells are existing prior to the promulgation of WALTA Act, 2002 and under the provisions of the said Act, the petitioners have to register the existing bore wells, but they have not registered the same. When sufficient water is available through irrigation canal to replenish or supplement the evaporated or seepage water, the use of bore well water which are saline and using the bore well water for the fish tanks under the guise of replenishing the evaporated and seepage of water and to provide oxygen to the fish does not arise.
11. Clause 7.15 of G.O.Ms.No.7 dated 16.03.2013 says that to prevent groundwater depletion, no fresh water aquaculture farm shall be permitted to use water drawn from bore wells except for supplementing the losses from evaporation, seepage etc. But, clause 7.2 says that fertile agriculture lands shall not be permitted for conversion into fresh water aquaculture ponds except in cases where agriculture lands are less productive, fallow, low lying, prone to water logging etc. The provisions of the WALTA Act, 2002 require permissions from the authorities to use bore wells. But, the activity of 8 using the bore well saline water under the guise of replenishing/supplementing the evaporated and seepage water even through the bore well water amply demonstrated that the saline water is required only to grow L.Vannamei shrimp to maintain 0.5 ppt saline water and it also requires oxygen. But, the fresh water fish does not require replenishment of water from bore wells to supplement the oxygen as the petitioners' fish tanks are being maintained through canal water and fresh water can be supplemented through the canal water only. On inspection by the respondents also, it is found that the petitioners are unauthorizedly cultivating L.Vannamei shrimp in saline water drawn from bore wells without possessing the required permissions from the competent authority as per the guidelines prescribed in G.O.Ms.No.7 dated 16.03.2013 as amended by G.O.Ms.No.15 dated 26.05.2015.
12. In view of the latest enactment of the Andhra Pradesh State Aquaculture Development Authority Act, 2020 (for short 'the Act 29 of 2020') and the Rules made thereunder, the farmers of the existing fresh water aquaculture farms have to get an endorsement of the existing permissions. But, the same is not obtained by the petitioners and nothing is stated with regard to the said endorsement, without which continuing the fresh aquaculture is unauthorized. The guidelines issued in G.O.Ms.Nos.7 and 15 and also the latest 9 enactment Act 29 of 2020 prohibit the shrimp culture in the fish tanks even in the notified aquaculture zones. Only the fish tanks situated in Coastal aquaculture zones notified in the Coastal Aquaculture Authority Act, 2005, the shrimp culture can be allowed in saline or brackish water, but does not include fresh water aquaculture.
13. In those circumstances, this Court felt it appropriate to dispose of all the writ petitions giving liberty to the petitioners to approach the 4th respondent - Fisheries Development Officer or competent authority to get the required endorsement on the existing permissions for doing fresh water aquaculture only and the petitioners are also directed to give an undertaking in the form of affidavit to the aforesaid authority that they will not resort to any unauthorized culture of L.Vannamei shrimp and use of bore wells under the guise of replenishment or supplementing the evaporated water as there is no necessity of bore well water as the lands are situated in submergible or inundated and there is sufficient canal water. As it appears that bore wells are dug only for the purpose of rearing the shrimp culture with saline water, in the event of petitioners resorting for unauthorized L.Vannamei shrimp culture, the respondent authorities are at liberty to inspect the petitioners' fish tanks and conduct mediatorsnama/panchanama with two independent witnesses along with officers. Based on the said mediatorsnama/panchanama, the authorities shall give notice and 10 consider explanations if any given and thereafter pass appropriate reasoned order as per the provisions of Act 29 of 2020 and the Rules made thereunder directing the petitioners to stop shrimp culture, otherwise they will be liable for penal action and their authorization is also liable for cancellation. The undertaking shall be given within a period of two (2) weeks from the date of receipt of a copy of this order. The respondent authorities are directed to consider their application for endorsement and renewal of existing permissions as per the provisions of the Act 29 of 2020, within a period of four (4) weeks thereafter. The respondents are at liberty to take appropriate action to close down and removal of the existing bore wells and electricity supply connection as the existing bore wells are appears to be unauthorized and contrary to the provisions of the WALTA Act, 2002.
14. Accordingly, the Writ Petition is disposed of. No order as to costs.
15. As a sequel, miscellaneous petitions pending, if any in the writ petition, shall also stand closed.
__________________________ JUSTICE M. GANGA RAO 30.09.2022 anr 11 THE HON'BLE SRI JUSTICE M.GANGA RAO WRIT PETITION No.19487 OF 2020 30-09-2022 anr