Kerala High Court
District Collector vs Changaram Pulitharamuri Mitchabhumi ... on 23 October, 2018
Author: Annie John
Bench: K.Surendra Mohan, Annie John
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
TUESDAY, THE 23RD DAY OF OCTOBER 2018 / 1ST KARTHIKA, 1940
WA.No. 756 of 2015 IN WPC. 30212/2014
AGAINST THE JUDGMENT IN WP(C) 30212/2014 of HIGH COURT OF
KERALA DATED 04-03-2015
APPELLANTS/RESPONDENTS 1 TO 5:-
1 DISTRICT COLLECTOR,
ALAPPUZHA DISTRICT, COLLECTORATE, ALAPPUZHA, PIN - 688 001.
2 THE PRINCIPAL AGRICULTURAL OFFICER,
ALAPPUZHA DISTRICT, CIVIL STATION, ALAPPUZHA DISTRICT,
PIN - 688 002.
3 THE ASSISTANT EXECUTIVE ENGINEER,
MINOR IRRIGATION, OFFICE OF THE ASSISTANT EXECUTIVE
ENGINEER, CIVIL STATION, CHERTHALA, ALAPPUZHA DISTRICT,
PIN - 688 524.
4 THE DEPUTY DIRECTOR OF FISHERIES,
ALAPPUZHA, OFFICE OF THE DEPUTY DIRECTOR OF FISHERIES,
MINI CIVIL STATION, NEAR BOAT JETTY, ALAPPUZHA, PIN - 688 001.
5 THE STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY TO THE GOVERNMENT OF
KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -
695 001.
BY ADV. SRI. A.J. VARGHESE, GOVERNMENT PLEADER
RESPONDENTS/PETITIONERS 1 TO 4:-
1. CHANGARAM PULITHARAMURI MITCHABHUMI NELLULPADAKA
SAMITHI, REGD NO.64/97, EZHUPUNNA SOUTH P.O, KODAMTHURUTHU
PANCHAYATH, KODAMTHURUTHU VILLAGE, ALAPPUZHA DISTRICT
PIN - 688 537, REPRESENTED BY ITS PRESIDENT A.A.NELSON.
2. VALIYATHADAM PADASEKHARA NELLULPADAKA SAMITHI,
REGD NO.241/91, KUTHIYATHODE PANCHAYATH, KUTHIYATHODE
W.A. No.756/2015 -2-
VILLAGE, PALLITHODE P.O., ALAPPUZHA DISTRICT, PIN - 688 540,
REPRESENTED BY ITS SECRETARY SHAJI AUGUSTINE.
3. THEKKE CHANGARAM KARSHAKA SANGHAM NELLULPADAKA
SAMITHI, REGD NO.A.409/05, EZHUPUNNA SOUTH P.O., KODAMTHURUTHU
PANCHAYATH, KODAMTHURUTHU VILLAGE, ALAPPUZHA DISTRICT,
PIN - 688 537, REPRESENTED BY ITS SECRETARY, VIJAYANADHA
KAIMAL.
4. KERALA AQUA FARMER'S FEDERATION,
REGD NO.ER1147/11, ALAPPUZHA DISTRICT COMMITTEE,
REPRESENTED BY ITS SECRETARY GEORGE ALEXANDER,
AND PRESENTLY FUNCTIONING AT VATTAKATTUSSERY HOUSE,
THURAVOOR PANCHAYATH, THURAVOOR VILLAGE,
ALAPPUZHA DISTRICT. PIN.688 532.
R1-R4 BY ADV. SRI.M.P.RAMNATH
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2018, THE COURT
ON 23-10-2018 DELIVERED THE FOLLOWING:
JUDGMENT
Annie John,J.
The State has filed this appeal challenging the judgment of the learned Single Judge in W.P.(C) No. 30212 of 2014 dated 04.03.2015. The respondents in the writ petition are the appellants herein and the writ petitioners are the respondents.
2. The main relief sought for in the writ petition was for a direction to the respondents to ensure that all the shutters of Andhakaranazhi Bridge cum Regulator ('ABR' for short) are to be kept open for the period commencing from 15th November to 30th April of the succeeding year. When the matter was taken up for consideration, the learned Single Judge, on the basis of the suggestions of the Deputy Director of Fisheries of Alappuzha District that saline water is required for shrimp W.A. No.756/2015 -3- cultivation, has granted an interim order directing the appellants/respondents to open the shutters of ABR. The learned single Judge as per the impugned judgment allowed the writ petition directing the respondents to ensure that all the shutters of ABR are kept open from 15th November to 30th April of the succeeding year. Hence this writ appeal.
3. The learned Government Pleader submits that the ABR, which is situated in Alappuzha District is being operated on need basis to safeguard the Pokkali Paddy Fields of an extent of about 2000 hectares. The Andhakaranazhi project was introduced for the protection of crops and the regulation and prevention of the intrusion of saline water from the sea. The opening of the shutters in November of every year results in flooding the area with the saline water which causes untold difficulties and inconvenience to the local people, who are residing in several Panchayaths and also affects the traditional organic vegetable cultivations and other agricultural cultivations assisted and funded by the Government of Kerala and various Banks. The purpose of the ABR, which was introduced in the year 1958, was for the regulation of saline water during the particular period and its operation is regulated by the District Administration in consultation with the Principal Agricultural Officer of the District concerned, as and when the situation is warranted. The ABR will be closed from the date commencing from 15 th November W.A. No.756/2015 -4- upto February of the succeeding year.
4. He has also argued that an Advisory Committee has been constituted by the Government of Kerala for the purpose of regulating the opening and closing of ABR. The Advisory Committee is headed by the District Collector as a Convener and for the last four decades, the operation of ABR is under the control of the second appellant. The shutters are being operated by the officers of the Department of Minor Irrigation in consultation with the District Administration concerned. Now the majority of the people, who are residing over the western part of Cherthala Taluk, are facing the intrusion of saline water from the sea, which result in flood. Most part of the area will be filled with saline water by the opening of the shutters during this period. It creates inconvenience and hardship to the people residing there, especially poor people who are residing in small houses and the agriculturists.
5. He has further submitted that small farmers who are engaged in traditional organic vegetable cultivation, are affected by the opening of the shutters during the aforesaid period. The local representatives of the Panchayath made a complaint before the District Administration requesting for closing the shutters during the period commencing from November 15th till February of the succeeding year and the second appellant and the Deputy Director of Agricultural (E&T) Alappuzha had conducted local inspection on 02.02.2015. On inspection, it was found W.A. No.756/2015 -5- that the majority of the area of seven Panchayaths was flooded with saline water and the second appellant consulted the District Administration for taking remedial measures with regard to the flooding of saline water by the reason of high tide during the month of February. The first appellant, the District Collector, has appointed a committee for preparing a report with regard to the regulation of ABR. The committee, after conducting field visit and discussions and deliberation of the meeting and opinion from all the local representatives of the Panchayath, prepared Annexure R2(a) report, wherein it is stated that the shutters are to be closed from the month of November upto February of the succeeding year, for the purpose of preventing saline water from sea and protecting the source of drinking water in the well. On complaints made from the public as well as from the representatives of the Panchayaths, M.L.A and M.P., the District Administration convened an urgent meeting on 29.01.2015. In the meeting, it was decided to close the shutters at the earliest occasion and to take steps to vacate the interim order granted in the writ petition.
6. It is contended that the leaned Single Judge has not considered the object of the ABR while passing the impugned order. The learned Single Judge ought to have taken into consideration the complaint of the Panchayath and the decision of the District Administration. As per Rule 16 of the Kerala Inland Fisheries and Aquaculture Rules, 2013, the W.A. No.756/2015 -6- respondents/writ petitioners have obtained licence for shrimp cultivation. There is no stipulation in the licence that the Fisheries Department/State has to provide saline medium as required throughout the period for promoting shrimp cultivation. The learned Single Judge ought to have found that the appellants have no obligation to provide saline water throughout the period by way of opening the shutters of ABR. 'Oru Nellum Oru Meenum' Scheme is introduced by the State intending not only to the fish cultivators, but also the organic vegetable cultivators. Therefore, the findings of the learned Single Judge that the scheme is intended for the persons who are engaged in cultivation of fish farming and the paddy cultivation is against the object of the scheme/policy of the State is erroneous. The learned Single Judge ought to have dismissed the writ petition on the basis of Annexure R2(a) report. The opening and closing of ABR and Thanneermukkom Bund is closely related to each other. The Thanneermukkon Bund was already closed with effect from 26.12.2014. The ABR has to be closed prior to the closing of the Thanneermukkom Bund, since it is closer to the sea mouth. The learned Single Judge has not taken into account the the needs of 'puncha crop' during the period over an extent of 26000 hectares of land for agricultural operations in Kuttanad. In the above backgrounds, the learned Government Pleader seeks dismissal of the writ appeal .
7. Heard the learned counsel on both sides.
W.A. No.756/2015 -7-
8. The sole question which arises for consideration is whether the attempt of the appellants/respondents to open the shutters of the ABR from 15th November to 30th April of every succeeding year is justifiable or not. The writ petition which was filed by the appellants was disposed of by the learned Single Judge directing them to ensure that all the shutters of ABR are kept open during the aforesaid period. It was also ordered that the judgment would not stand in the way of the appellants' closing the shutters to avoid dangers due to unexpected natural events like swell waves, tsunami etc.
9. The respondents' contention is that Andhakaranazhi is the sole inlet of pure saline/brackish sea water to the inland channels leading to the padasekharams of karinilams in the relevant area of Alappuzha District utilised for shrimp/prawn cultivation during the statutory recognized shrimp/prawn cultivation season from November 15 th to 30th April. As per clause (6) of the existing notification regarding 'Oru nellum oru meenum' ('One paddy one fish'), the cultivators shall obtain licence starting from 15th November to 30th April every year. Indisputably, the Government has permitted the respondents to conduct prawn fishing operations in the paddy land owned by them commencing from 15 th November to 30th of April. According to the respondents, when the Government has permitted them to cultivate the prawn fishing in the paddy land, they are entitled to get saline water which is the suitable W.A. No.756/2015 -8- medium for the cultivation of the prawn fishing. For that purpose, the appellants wanted the Andhakaranazhi to be kept open during that period. Thus, the appellants are not amenable to the demand of the respondents. According to them, the salinity of that area will increase, if the ABR is kept open and it will cause destruction of the agricultural operations and other cultivation in the locality and therefore, the appellants are not ready to open the ABR when the prawn cultivation is in progress. It is also contended that if the shutters of the ABR were closed, then the sandbar will form and that will prevent the entry of the saline water into the channels. But these contentions were not accepted by the learned Single Judge. The learned Singe Judge has observed that the Government have introduced 'Oru nellum oru meenum' ('One paddy one fish') policy permitting the owners of the padasekharams to do shrimp cultivation during the period from November to April and they cultivate paddy during rainy season. The paddy lands located on the western side of the Cherthala Taluk is in a low lying area, that is below the sea level. So, naturally when the shutters are open, the saline water will enter into the paddy land and create much problems. In order to avoid this phenomenon, the ABR was constructed in late 1950s to try and make the padasekharams in the area double crop paddy fields instead of single crop cultivation during monsoons. But that experiment totally failed and eversince 1960, it was decided to conduct paddy W.A. No.756/2015 -9- cultivation during rainy season and saline water cultivation during the period from November to April. Accordingly, 'Oru nellum oru meenum' policy was introduced in order to help the cultivators make more profits from their paddy land. The local cultivators are depending upon the shrimp cultivation mainly during the period from November to April. It is also borne out that the Government Agencies and the Department of Fisheries, FFDA, Agency for Development of Aqua Culture Kerala and the Central Government through Marine Product Export Development Authority are providing substantial funds which are in fact from the public exchequer for supporting shrimp farming and giving subsidy for bund construction, seed, feed and marketing. It is important to note that for the purpose of shrimp cultivation, saline water is required. So the respondent wanted to get the shutters opened during the period from November to April. On the other hand, the appellants had contended that the opening of the shutters of ABR will definitely affect the small cultivators who are cultivating vegetables, seasonal crops etc. It is also admitted that there is no paddy cultivation during the period from November to April.
10. Pursuant to the orders of this Court to get a report regarding the regulation of the ABR shutters, the District Collector in the meeting held on 20.11.2014, after hearing all the parties concerned, declared that 10 shutters on each side should be tentatively kept open and the W.A. No.756/2015 -10- further aspects should be reviewed later. Ext.P11 is the copy of the minutes and subsequently Ext.P12 erratum was issued. It is also submitted that the ABR must be operated on a need based manner for Pokkali paddy cultivation. During monsoon season, the shutters have to be operated continuously along with the tidal effect. During high tides, the shutters have to be closed to avoid saline water flowing into the channels and during low tides the shutters have to be opened to allow the excess rain water to flow out. Normally, the operation of these shutters will be done during the monsoon season i.e., the paddy cultivation season. It was also argued that during shrimp cultivation season, the shutters have to be kept open throughout to allow free inflow and outflow of saline water which is the medium for cultivation of shrimp, in accordance with the tidal effect. But the learned counsel for the appellants has contended that there are complaints from that locality regarding the opening of the shutters. Moreover, the opening of the shutters will help the shrimp cultivators. On the other hand, the closing of the shutters is only to help the sand mining mafia operating in the area. In the counter affidavit filed by the second appellant in the writ petition, it was stated that the natural sand-bar would be formed only in a situation where the shutters are in a closed condition. If the shutters are closed, the quantity of sand deposited outside the shutters due to sea waves would be higher and during the next monsoon season, the W.A. No.756/2015 -11- same will have to be removed manually expending huge amount from the State Exchequer. This operation would cause loss not only to the petitioners but also to the Government.
11. Ext.R2(a) report was filed by the District Collector after convening a meeting on 29.12.2017 in the presence of the Additional District Magistrate, the Heads of different departments, including the Fisheries Department, Junior Superintendents of various Grama Panchayats, Secretary of the Cherthala South Panchayath and Kuthiathode Panchayath, Agricultural Officer of the Kadakkarappally and Cherthala South and the shrimp cultivators, paddy cultivators etc. In the report it is stated that in Kuthiathodu Grama Panchayath, harvesting would be done during the end of February. It is also reported that the prawn cultivators are spending lakhs of rupees for the shrimp cultivation, that there are also disputes among the shrimp cultivators and paddy cultivators, that the ABR was to solve the problems of the fish cultivators and paddy cultivators and that a decision was taken to protect the lands from the saline water by closing the shutters on the southern side and opening the shutters on the northern side. Ext.R2(b) is the report filed by the Principal Agricultural Officer, Alappuzha. It is stated that the density of the saline water is high and therefore, the paddy cultivation and the organic vegetable cultivation will be destroyed. In general, in the area of the Cherthala Taluk, the water will be more saline than the W.A. No.756/2015 -12- other localities. Moreover, it is important to note that the location of the paddy land in that locality is below the sea level. It is highly necessary to regulate the entry of the saline water to the paddy field by regulating the ABR shutters.
12. The main issue in this case is that the saline water is highly required for shrimp cultivation, but that is not required for the paddy cultivation during monsoon season and the shrimp cultivation commence only from November and ends in April every year. Even though in the notification dated 26.05.2013, nothing was mentioned regarding the supply of saline water during shrimp cultivation, it is an undisputed fact that saline medium is required for prawns cultivation. The Deputy Director of Fisheries, the 4th appellant, had taken a stand that for the purpose of shrimp cultivation, letting in saline water is a must and the shutters of the ABR have to be kept open. It is reported by the second appellant, the Principal Agricultural Officer, that after harvesting the shutters can be opened.
13. On going through Exts.P3, P5 and P6, it turns out that the authorities have specifically reported that the medium of saline water is mandatory for the shrimp cultivation. It is also admitted by the appellants that there is no paddy cultivation during the aforesaid period. There is no contention by the appellants as well as the respondents that the agricultural farmers and the shrimp farmers are different and distinct W.A. No.756/2015 -13- persons and the owners of the paddy field are conducting the shrimp cultivation as well as the paddy cultivation. It is true that if the salinity is increased, that will definitely affect the vegetable cultivation. Over and above, there being the shrimp cultivation in large scale, if saline water is not available, it will affect the same. So, the Government have to provide the inflow and outflow of saline water for the shrink cultivation. This fact is not disputed. But the inflow of the saline water during high tides will cause damage to the small cultivators and the persons who are fully depending upon the drinking water for the well etc. As per Annexure R1(a), it was decided to open the shutters on the northern side of the ABR and to close down the shutters on the southern side. According to our view, shrimp cultivators are entitled to get saline water for cultivation. So, the suggestion as made in Ext.R1(a) to open the shutters of northern side is sufficient to meet the requirements. Therefore, the order passed by the learned single Judge that the shutters of the ABR are to be kept open from 15 th November to 30th April of the succeeding year, is hereby set aside and it is ordered that the shutters on the northern side of the ABR will be kept open during the aforesaid period.
In the result, this appeal is partly allowed and the appellants shall ensure that all the shutters on the northern side shall be kept open during the period from 15 th November to 30th April of the succeeding W.A. No.756/2015 -14- year. It is also made clear that this judgment will not stand in the way of the appellants' closing the shutters to avoid dangers due to unexpected natural calamities like swell waves, tsunami etc. sd/-
K. SURENDRA MOHAN, JUDGE.
sd/-
ANNIE JOHN, JUDGE.
Rv