Andhra Pradesh High Court - Amravati
Peddinti Venkata Sivaramakrishna, vs The State Of Andhra Pradesh, on 1 April, 2025
HIGH COURT OF ANDHRA PRADESH : AT AMARAVATI
MAIN CASE No.: W.P.No.234 of 2025
PROCEEDING SHEET
SL. DATE ORDER OFFICE
NO. NOTE
07 01.04.2025 GRKP, J
Heard Sri N. Srihari, Ld. Counsel for the
Writ Petitioner and Sri Krishna Kishore, Ld. Asst.
Government Pleader for Agriculture, Cooperation,
Animal Husbandry, Dairy Development and
Fisheries appearing for Respondent Nos. 1, 2, 6 to
8 and Sri Y. Somaraju, Standing Counsel for APPCB appearing for Respondent Nos. 4 and 9.
2. Ld. Counsel for the Writ Petitioner has drawn the attention of this Court to the Notice issued by the Respondent No.8 dated 30.10.2024 to the Unofficial Respondent No.10. The Notice would indicate that the Unofficial Respondent has violated the „Terms of License‟ and has started salt water prawn culture while he had in fact obtained license for fresh water fish culture.
3. It was noticed by this Court that the said Unofficial Respondent No.10 was only directed by the Respondent No.8 to stop the salt water prawn culture and revert back to the fresh water fish culture without referring to any provision of law for the alleged violations. It is also noticed that the Competent authority has not prescribed any 2 SL. DATE ORDER OFFICE NO. NOTE punitive measures and punishment for violating the terms and conditions of the license granted to the Unofficial Respondent No.10.
4. Upon query by this Court, Ld. Counsel for the Writ Petitioner has drawn the attention of this Court to G.O.Ms.No.7 Animal Husbandry, Dairy Development and Fisheries (Fish.II) Department, Dated 16.03.2013 (Ex.P.2). Ld. Counsel appearing for the Respondent No.9 has drawn the attention of this Court to Para-E of Annexure-I (Guidelines) titled as "Violations".
5. On going through the provisions dealing with the violations, this Court has noticed that for the conversion of fresh water aquaculture to that of salt water prawn culture no specific punishment has been prescribed in as much as such conversion causes serious damage to the surrounding land as well.
6. It is a matter of common sense that when the pond which is meant for fresh water aquaculture is converted into salt water prawn culture, not only the pond but the surrounding area also would become saline due to the presence of the salt water, and that would invariably have an adverse impact on the surrounding lands. It may have an adverse impact even on the agricultural yield in the neighbouring farm lands.
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NO. NOTE
Unfortunately the G.O.Ms.No.7 Animal,
Husbandry, Dairy Development and Fisheries (Fish.II) Department, Dated 16.03.2013 (Ex.P.2) has not dealt with this contingency.
7. It is a settled law that the act of pollution is visited with „strict liability‟. The Hon‟ble Apex Court has already laid down the principle of "Polluter Pays". Whereas, neither the Fisheries Department nor the Andhra Pradesh Pollution Control Board, have, so far, devised any method in curbing this menace of illegal conversion of fresh water ponds into salt water prawn culture ponds. The G.O.Ms.No.7 Animal, Husbandry, Dairy Development and Fisheries (Fish.II) Department, Dated 16.03.2013 (Ex.P.2) appears to be a one „without teeth to bite‟, which made it a heaven for the violators to obtain fresh water aquaculture license and violate the same with impunity by undertaking prawn culture in the medium of either salt water or brackish water as the same appears to be more lucrative than the fish culture.
8. In Indian Council for Enviro-Legal action and others Vs. Union of India and others; 1996 (3) SCC 212, the Hon‟ble Apex Court had held in Para No.67 as under:
67. The question of liability of the 4 SL. DATE ORDER OFFICE NO. NOTE respondents to defray the costs of remedial measures can also be looked into from another angle, which has now come to be accepted universally as a sound principle, viz., the "Polluter Pays" principle.
[ (Historic Pollution -- Does the Polluter Pay? by Carolyn Shelbourn -- Journal of Planning and Environmental Law, Aug. 1974 issue.)] "The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The „Polluter Pays‟ principle was promoted by the Organisation for Economic Cooperation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on Government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialised society. Since then there has been considerable discussion of the nature of the Polluter Pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactorily agreed.
Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental 5 SL. DATE ORDER OFFICE NO. NOTE part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth Action Programme [(1987) OJC 328/1] makes it clear that „the cost of preventing and eliminating nuisances must in principle be borne by the polluter‟, and the Polluter Pays principle has now been incorporated into the European Community Treaty as part of the new articles on the environment which were introduced by the Single European Act of 1986. Article 130-R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the community, and that action is to be based on three principles: the need for preventive action; the need for environmental damage to be rectified at source; and that the polluter should pay."
Thus, according to this principle, the responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 empower the Central Government to give directions and take measures for giving effect to this principle. In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment (Protection) Act, 1986. It is, of course, open to the Central Government to take the help and assistance of State Government, RPCB or such other agency or authority, as they think fit.
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8.1. In Vellore Citizens' Welfare Forum v. Union of India and others; (1996) 5 SCC 647, the Hon‟ble Apex Court, while reiterating the principle of "Polluter Pays" (as laid down in the case of Indian Council for Enviro-Legal Action) has held in Para Nos. 12, 13 and 14 as under:
12. "The Polluter Pays Principle" has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action v. Union of India [(1996) 3 SCC 212 :
JT (1996) 2 SC 196] . The Court observed : (SCC p. 246, para 65) "... we are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country."
The Court ruled that : (SCC p. 246, para
65) "... once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on".
Consequently the polluting industries are "absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas". The "Polluter Pays Principle" as interpreted by this Court 7 SL. DATE ORDER OFFICE NO. NOTE means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
13. The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48-A and 51-A(g) of the Constitution are as under:
"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.--The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
48-A. Protection and improvement of environment and safeguarding of forests and wildlife.--The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.
51-A. (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures."
Apart from the constitutional mandate to protect and improve the environment there 8 SL. DATE ORDER OFFICE NO. NOTE are plenty of post-independence legislations on the subject but more relevant enactments for our purpose are :
the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment (Protection) Act, 1986 (the Environment Act). The Water Act provides for the constitution of the Central Pollution Control Board by the Central Government and the constitution of the State Pollution Control Boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. It also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board. Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the State Pollution Control Boards constituted under the Water Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the Air Act, is to improve the quality of the air and to prevent, control and abate air pollution in the country. We shall deal with the Environment Act in the latter part of this judgment.
14. In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country.
9. Having regard to this aspect, the Principal Secretary, Animal Husbandry, Dairy Development 9 SL. DATE ORDER OFFICE NO. NOTE and Fisheries Department is directed to file an Affidavit as regards the measures which are required to be taken for making necessary provisions of law for penalizing the violators of fresh water aquaculture licensees under the principle of "Polluter Pays". Let the Affidavit be filed within two weeks.
10. It is stated by the Ld. Counsel for the Writ Petitioner that the Unofficial Respondent No.10 has also entered appearance through his counsel, but there is no appearance.
11. The Respondent No.8 namely Fisheries Development Officer is directed to file an Affidavit as regards the current status of the fish ponds. He shall personally inspect and file a Report to this effect along with the Affidavit.
12. List this matter on 16.04.2025.
________ GRKP, J MNR