Kerala High Court
Krishnakumar K vs State Of Kerala on 29 June, 2008
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
FRIDAY, THE 30TH DAY OF SEPTEMBER 2016/8TH ASWINA, 1938
WP(C). No.26030 of 2016 (S)
----------------------------
PETITIONER(S):
------------------
KRISHNAKUMAR K.,
AGED 30, S/O.KRISHNA KAIMAL,
"KRISHNA VILAS", AVALOOKUNNU P.O.,
ALAPPUZHA DISTRICT.
BY ADVS.SRI.JOBY JACOB PULICKEKUDY
SRI.ANIL GEORGE
SRI.K.S.SUMEESH
SMT.NIVYA VALSAN
RESPONDENT(S):
-------------------
1. STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE DISTRICT COLLECTOR,
KOTTAYAM, COLLECTORATE,
CIVIL STATION, KOTTAYAM - 686 002.
3. THE PRINCIPAL AGRICULTURAL OFFICER,
DEPARTMENT OF AGRICLTURE, KOTTAYAM - 686 002.
4. THE DIRECTOR OF FISHERIES,
DEPARTMENT OF FISHERIES,
THIRUVANANTHAPURAM - 695 001.
5. REVENUE DIVISIONAL OFFICER, KOTTAYAM - 686 002.
6. THE DIRECTOR,
DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE,
THIRUVANANTHAPURAM - 695 001.
...2/-
WP(C). No.26030 of 2016 (S)
:2:
7. RAKINDO KUMARAKAM RESORTS PRIVATE LIMITED,
NO.1, SUBBARAYA AVENUE, C P RAMASWAMY ROAD,
ALWARPET, CHENNAI - 600 001.
8. PUNCHA SPECIAL OFFICER, KOTTAYAM - 686 002.
R1-R4 BY ADV. SRI.RANJITH THAMPAN, ADDL.ADVOCATE GENERAL
R7 BY ADVS. SRI.GEORGE POONTHOTTAM
SMT.NISHA GEORGE
BY GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-09-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C). No.26030 of 2016 (S)
APPENDIX
PETITIONER(S)' EXHIBITS:
P1. COPY OF REPORT OF PLANNING COMMISSION, GOVERNMENT OF INDIA
DATED 29.06.2008.
P2. COPY OF REPORT SUBMITTED BY THE 2ND RESPONDENT TO THE PRINCIPAL
SECRETARY, REVENUE DATED 09.01.2016.
P2(A). ENGLISH TRANSLATION OF EXT.P2.
P3. COPY OF PROCEEDINGS OF THE 2ND RESPONDENT DATED 04.01.2016.
P4. COPY OF GOOGLE MAP SHOWING THE VEMBANAD LAKE AND THE POSITION
OF METHRAN KAYAL.
P5. COPY OF REPORT OF THE KERALA STATE BIODIVERSITY BOARD PUBLISHED
IN INDIAN JOURNAL TRADITIONAL KNOWLEDGE IN VOLUME 12(1) JANUARY
2013 PAGES 102 TO 108.
P6. COPY OF REPORT OF THE INTERNATIONAL UNION FOR CONSERVATION OF
NATURE AND NATURAL RESOURCES (IUCN) SHOWING THE FISH CHANNA
DIPLOGRAMME (PULIVAKA) IN THE REDLIST.
P7. COPY OF REPORT OF THE INTERNATIONAL UNION FOR CONSERVATION OF
NATURE AND NATURAL RESOURCES (IUCN) SHOWING THE FISH
CARINOTETRANODON TRAVANCORICUS, MALABAR PUFFERFISH
(THAVALAPOTTAN) IN THE REDLIST.
P8. COPY OF REPORT OF THE INTERNATIONAL UNION FORCONSERVATION OF
NATURE AND NATURAL RESOURCES (IUCN) SHOWING THE FISH
HORABAGRUS BRACHYSOMA, GANTHERS CATFISH (MANJA KOORI) IN THE
RED LIST.
P9. COPY OF RESEARCH PAPER OF THE DEPARTMENT OF ACQUATIC BIOLOGY AND
FISHERIES, KERALA UNIVERSITY STATING THE BREEDING SEASON OF
ETROPLUS SURATENSIS (KARIMEEN).
P10. COPY OF RESEARCH PAPER OF THE AGRICULTURAL RESEARCH CENTRE
STATING THE BREEDING SEASON OF HORABAGRUS BRACHYSOMA,
GUNTHERS CATFISH (MANJA KOORI).
P11. COPY OF THE SURVEY REPORT PUBLISHED IN OPEN JOURNAL OF MARINE
SCIENCE 2014.
P12. COPY OF REPORT PUBLISHED AS FISH AND FISHERIES OF VEMBANAD LAKE
BY ASOKA TRUEST FOR RESEARCH IN ECOLOGY AND ENVIRONMENT.
P13. COPY OF AUCTION ADVERTISEMENT PUBLISHED IN THE MANORAMA DAILY
DATED 27.07.2016 BY THE 8TH RESPONDENT.
...2/-
WP(C). No.26030 of 2016 (S)
APPENDIX-(2)
P13(A). ENGLISH TRANSLATION OF EXT.P13.
P14. COPY OF NEWS DATED 13.06.2016 IN THE MALAYALA MANORAMA ONLINE
EDITION.
P15. COPY OF NEWS DATED 17.06.2016 IN THE TIMES OF INDIA ONLINE EDITION.
P16. COPY OF NEWS DATED 18.06.2016 IN THE INDIAN EXPRESS ONLINE
EDITION.
P17. COPY OF REPRESENTATION DATED 02.08.2016 FILED BY THE PETITIONER
BEFORE THE 8TH RESPONDENT.
P18. COPY OF THE SCOENTIFIC PUBLICATION BY THE EXPERT IN THE MONTH
PRESTIGIOUS INDIAN JOURNAL CUIRRENT SCIENCE.
P19. COPY OF RELEVANT PAGES OF THE REPORT PUBLISHED BY CMFRI.
P19(A). ENGLISH TRANSLATION OF EXT.P19.
P20. COPY OF SCIENTIFIC PAPER OF DR.MADHUSOODANA KURUP THE FIRST VICE
CHANCELLOR OF KERALA UNIVERSITY FOR FISHERIES AND OCEAN
SCIENCES.
P21. COPY OF THE REPORT PREPARED BY FISHERIES DEPARTMENT WHILE
DECLARING KARIMMEN AS STATE FISH.
RESPONDENT(S)' EXHIBITS:-
-------------------------------
ANNEX.-R4(A): COPY OF THE INTERIM ORDER DATED 4.2.2016 IN WPC NO.4225 OF
2016
ANNEX.-R4(B): COPY OF THE INTERIM ORDER DATED 7.4.2016 IN WPC 8757/2016
ANNEX.-R4(C): COPY OF THE RELEVANT PORTION OF THE REPORT OF
SRI.M.S.SWAMINATHAN.
ANNEX.-R4(D): COPY OF THE REPORT OF DIRECTOR OF INTERNATIONAL RESEARCH
AND TRAINING CENTRE FOR BELOW SEA LEVEL FARMING.
ANNEX.-R4(E): COPY OF THE ARTICLES PERTAINING TO CAPTIVE BREEDING FOR
CONSERVATION OF ENADEMIC FISHES IN WESTERN GHATS, INDIA
PUBLISHED BY THE KERALA AGRICULTURAL UNIVERSITY.
KRJ
//TRUE COPY// P.A TO JUDGE
MOHAN M.SHANTANAGOUDAR, C.J. &
ANTONY DOMINIC, J
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W.P(C) No.26030 of 2016
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Dated this the 30th day of September, 2016
JUDGMENT
Mohan M.Shantanagoudar, C.J.
This writ petition is filed as a public interest litigation, with the initiative to protect the lake fishes, viz., Horabagrus brachysoma, commonly known as 'Manjakoori', Channa diplogramme commonly known as 'Pulivaka', Carinotetrodon travancoricus commonly known as 'Thavalapottan', and Etroplus Suratensis commonly known as 'Karimeen'.
2. Case of the petitioner is that Methran Kayal is an integral part of Vembanad ecosystem, which is of international importance owing to its rich biodiversity and socio economic significance; traditionally, paddy was being cultivated in Methran Kayal throughout, till the year 2008; however, the cultivation of paddy is stopped for one or the other reasons from the year 2008, consequent upon which, according to the petitioner, a micro habitat favourable for fish during its breeding season is created; Methran Kayal harbours viable population of three threatened fishes, viz., Horabagrus brachysoma, commonly known as 'Manjakoori', Channa WP(C).26030/16 -:2:- diplogramme commonly known as 'pulivaka', and Carinotetrodon travancoricus commonly known as 'thavalapottan'; the months of June to September are considered as breeding months for many fresh water fishes and it takes around 30 to 60 days for the egg to develop into fingerlings; fish breeding would develop into fingerlings, may be in the first week of November or so; in the meanwhile, the 8th respondent is in the process of dewatering the entire area of 420 Acres in Methran Kayal to undertake farming, consequent upon which, the breeding habitat of the aforementioned fishes would be destroyed; thus, with a view to halt the dewatering process of Methran Kayal until November, 2016, the petitioner has approached this Court.
3. In sum and substance, the case of the petitioner is that the rare fish population can be saved, if dewatering is stopped till the end of November, 2016.
4. Statement of objections is filed by the 4th respondent, the Director of Fisheries, Trivandrum, as directed by this Court.
5. It is not in dispute that Methran Kayal is spread over a vast area of 420 Acres of land. It is a part of Vembanad lake which is the largest wetland in Kerala. This Court, by judgment dated 8.9.2016, WP(C).26030/16 -:3:- passed in W.P(C) No.29740 of 2016 permitted the State to construct a bund and to drain out the water for the purpose of paddy cultivation. It is also made clear in the very judgment that such construction and draining out of water should not be for the purpose of any business activity, including farm tourism. On the other hand, dewatered land should be utilised only for cultivation of the property. It is also observed in the said judgment that the construction of the bund is absolutely necessary in order to prevent water from the canals gushing into the paddy fields. The public interest litigation W.P(C) No.29740 of 2016 was dismissed with the aforementioned observations.
6. From the records, it is amply clear that the State Government wants to dewater the land in order to have paddy cultivation in the area. The water will be collected once the monsoon starts. Till such time, the farmers will cultivate the land after dewatering and paddy will be grown for their livelihood.
7. The attention of this Court is drawn to the fact that though there are 1231 padasekharams occupying an extent of 59375 hectares, the paddy cultivation in the Kuttanad padasekharams have witnessed crisis because of various socio, political, WP(C).26030/16 -:4:- environmental and other reasons. The Kuttanad padasekharams, which were once the granary of Kerala State, as far as rice production is concerned, had witnessed great setback. The Central Government, to reckon means for ensuring protection of paddy cultivation in Kuttanad paddy lands, appointed Sri.M.S.Swaminathan, a noted Agricultural Scientist, who has filed a report, which is known as 'Swaminathan Report'. The report suggested the measures to mitigate agrarian distress in Alappuzha and Kuttanad wetland ecosystems. The said report has recommended a crop calender for cultivation of paddy lands in Kuttanad Kayal lands. As is clear from the table mentioned in the report (Annexure R4(c) filed along with the statement of objections of the 4th respondent), the crop calender as regards the puncha paddy of kayal lands and of lower Kuttanad in which, Methran Kayal also is situated, starts from first week of September. The dewatering process and field preparation as well as preparation of stale seed bed are to start on the first week of September and continue throughout the month. Sowing has to be started in October and other agricultural activities, including fertilisation or weeding plant protection, has to continue throughout November, December and January. Harvesting will be done during WP(C).26030/16 -:5:- the month of February every year. The said report also reveals that the crop calender has to be strictly followed so that cultivation is done in a systematic manner.
8. From the aforementioned report, it is amply clear that the process of dewatering should be done from the month of September itself. In his statement, the 4th respondent has clarified that the apprehension of the petitioner that the fish wealth in Methran Kayal region would be destroyed if dewatering is done, is without any basis. The dewatering of paddy cultivation would not cause any harm to fingerlings as well as the young ones, because the entire stock of fishes and its young ones would be drained back to the lake ecosystem during the process of dewatering. The dewatering of the fields are done with the help of motor pumps and also the water flowing out of the fields is controlled by Sluice gate. So also, the dewatering is done in a traditional method by using 'petty' and 'para'. It is clarified that the said process will not cause any harm to the fishes in the region and the dewatering could be done successfully without causing any harm to the adult fishes or to the juvenile fishes. There cannot also be any dispute that in the paddy fields, especially in the low lying area, there will be fish species, WP(C).26030/16 -:6:- paddy fields being the habitat of fishes. During dewatering, the fishes will go back to the nearest water bodies and, therefore, the process of dewatering will not, in anyway, affect the habitat of fish species.
From the aforementioned discussion, we are of the clear opinion that the dewatering process need not be stopped. Since the fish species would not be destroyed, even if dewatering process goes on, in as much as, the fishes will go back to the nearest water bodies, no direction can be issued in favour of the petitioner in this writ petition. Accordingly, the writ petition fails. The same stands dismissed.
Sd/-
Mohan M. Shantanagoudar, Chief Justice Sd/-
Antony Dominic, Judge krj.30/9/16