Andhra Pradesh High Court - Amravati
Nulu Surya Prabhakara 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 Nos.16446, 16448, 16431, 16429 & 16445
OF 2020
COMMON ORDER:
In all the writ petitions, the same cause of action arose for not allowing the petitioners to draw water from bore well for supplementing the losses from evaporation, seepage, etc., to their aquaculture fields situated in Devaguptam Revenue Village, Allavaram 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 petitioner in W.P.No.16446 of 2020 and W.P.No.16445 of 2020 has been cultivating aquaculture in the fish tanks covered by the land extent Ac.9.17 cents situated in Sy.Nos.664-1, 664-2-A2, 664-3-A2, 669-1B-1A, 670-1A-1, 671-1, 671-2, 671-3 & 671-4A-1 of Devaguptam Revenue Village, Allavaram Mandal, East Godavari District; the petitioner in W.P.No.16448 of 2020 has been cultivating aquaculture in the fish tanks covered by the land extent Ac.15.00 situated in Sy.Nos.662-B, 2 664-2, 664-3, 669-1A-1, 669-1A-2, 672-1A, 669-1B-2, 670-1B, 671- 4B, 672-1B, 670-2B, 669-2 & 669-3 of Devaguptam Revenue Village, Allavaram Mandal, East Godavari District; the petitioner in W.P.No.16431 of 2020 has been cultivating aquaculture in the fish tanks covered by the land extent Ac.5.00 situated in Sy.Nos.669-2 & 669-3 of Devaguptam Revenue Village, Allavaram Mandal, East Godavari District; and the petitioner in W.P.No.16429 of 2020 has been cultivating aquaculture in the fish tanks covered by the land extent Ac.5.00 situated in Sy.No.671-4A of Devaguptam Revenue Village, Allavaram 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 04.07.2020. Now, the crop is also raised and it is in progress. On 14.08.2020, the respondents 4 and 5 were visited their fields and objected the using of 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 3 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 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 4 and 5, without following the process of law, are objected the using of bore wells and draw the water in their aquaculture area, which is illegal, arbitrary and contrary to Clause 7.15 of G.O.Ms.No.7 dated 16.03.2013.
4. This Court on 15.09.2020, while ordering notice before admission, granted interim order following the order passed by this Court in Writ Petition No.2770 of 2020 dated 23.03.2020 that the bore wells situated in the petitioners' fields are directed to be restored with a direction that they shall be used only once in a week for a period of four hours for refreshing the water. It is also directed that the Officer of the Fisheries Department should also be present to monitor the usage of the water in that period of four hours only and ensure that 4 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, Allavaram, East Godavari District filed counter in all the writ petitions stating that the agriculture farmers of Gundepudi Village submitted a complaint in Spandana programme alleging that due to discharge of salt water being used for aquaculture by the petitioners into the irrigation canal, their drinking water tank is being contaminated and paddy and fresh water aquaculture farms are also being affected. To stop the petitioners from the salt water prawn culture activities, the respondents 4 and 5 along with the Village Revenue Officer have physically inspected the fish tanks of the petitioners on 14.08.2020 to enquire into the complaint. On inspection, it is observed that the petitioners were involved in unauthorized culture of L.Vannamei shrimp in saline water conditions through bore wells, without possessing the required permission from the competent authority as per the guidelines prescribed vide G.O.Ms.No.15 dated 26.05.2015 and contrary to the permission accorded for fresh water aquaculture and its guidelines. Then, the 4th respondent has served a common notice dated 10.09.2020 to the petitioners to stop their unauthorized culture within a stipulated time and otherwise the action will be taken as per the guidelines issued in G.O.Ms.No.7 dated 16.03.2013, but they did not stop. However, the 5 petitioners have given explanation on 18.09.2020 stating that they are doing only fresh water aquaculture as per the guidelines issued under G.O.Ms.No.7 dated 16.03.2013 and filed this writ petition with false contentions and this Court passed the interim order. During the visit to the aquaculture farms of the petitioners, the 4th respondent has observed that the petitioners are resorting to unauthorized culture of L.Vannamei shrimp using saline water through bore wells as main source of culture, by violating the interim order passed by this Court.
6. The petitioners filed reply-affidavit denying the allegations made in the counter and states that the authorities cannot say that the petitioners have been resorting to L.Vannamei culture without conducting proper enquiry or inspection by Expert committee and they are only drawing water from bore wells for supplementing the losses from evaporating, seepage, etc. as per Clause 7.5 of G.O.Ms.No.7 dated 16.03.2013.
7. 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 farm on 04.07.2020 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 6 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.
8. Learned Assistant Government Pleader for Fisheries, while reiterating the averments of the counter, states that the petitioners' fish tanks are registered on 04.07.2020 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 7 replenishing evaporated and seepage water, as per Clause 7.5 of G.O.Ms.No.7 dated 16.03.2013.
9. 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.
10. 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 on 04.07.2020 only to carry out the fresh water aquaculture in the tanks. For doing fish culture in the tanks, the petitioners state that they are 8 using the canal water and letting the waste water into the drain, for which they are paying water tax to the Government.
11. 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.
12. 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 9 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 on 14.08.2020 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, for which notices were issued on 10.09.2020 and the petitioners submitted explanation on his behalf and also on behalf of other farmers.
13. 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 10 which continuing the fresh aquaculture is unauthorized. The guidelines issued in G.O.Ms.Nos.7 and 15 and also the latest 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.
14. 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 11 two independent witnesses along with officers. Based on the said mediatorsnama/panchanama, the authorities shall give notice and 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.
15. Accordingly, all the Writ Petitions are disposed of. No order as to costs.
16. As a sequel, miscellaneous petitions pending, if any in all the writ petitions, shall also stand closed.
__________________________ JUSTICE M. GANGA RAO 30.09.2022 anr 12 THE HON'BLE SRI JUSTICE M.GANGA RAO WRIT PETITION Nos.16446, 16448, 16431, 16429 & 16445 OF 2020 30-09-2022 anr