Andhra Pradesh High Court - Amravati
Golla Venkata Nancharaiah vs The State Of Ap on 18 August, 2021
Author: Kongara Vijaya Lakshmi
Bench: Kongara Vijaya Lakshmi
HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI
Writ Petition No.5415 of 2019
ORDER:
This writ petition is filed 'to declare the proceedings dated 16.04.2019 issued by the 3rd respondent, wherein and where under kept the certificates of provisional registration of freshwater aqua culture dated 24.03.2018 and 01.07.2018 issued by the 2nd respondent in abeyance, as illegal and arbitrary and contrary to the guidelines issued in G.O.Ms.No.7 dated 16.03.2013'.
The impugned order dated 16.04.2019 reads as follows:
"Proceedings of the collector & Chairman, Dist.Level Committee (DLC) for regulation of fresh water aquaculture, Krishna district.
Present: Sri A.Md. Imitiaz, IAS Procdgs.No.FISH/FWA0MSV/1/2019 dated 16.04.2019.
Sub: Fisheries - Regulation of fresh water aquaculture - excavation of fish pond by Sri Golla Venkata Nancharayya s/o Nagamuniyya and others at Tharakathuru of guduru Mandal - orders to stop excavation of fish ponds - issued - regarding. Ref: 1. Rc.A/1069/2018 dated 16.4.2019 of the Tahsildar, Guduru.
2) Rc.No.B/218/2019 dated 16.4.2019 of the RDO, Machilipatnam
3) Note orders dated 16.4.2019 of the Collector l& Chairan, DLC, Krishna District.
ORDER:
In the reference (1) read above, the Tahsildar, Guduru has informed that the fish ponds are being excavated in survey numbers 165, 164/1, 163/3, 164/1 and 164/2 by Sri Golla Venkata Nancharayya s/o Nagamuniyya and Sri Golla Suresh Babu after obtaining provisional registration certificates from the DLC, Krishna District as indicated hereunder:
Sl. Name Provisional Date Revenue Exten
No. regn. No. S.No. in Ac.
1 Golla Venkata PRF011600032496 24.3.2018 165 0.17
Nancharayya
S/o Naga Muniyya
2 Golla Suresh PRF011800033992 1.7.2018 164/1, 3.17
Babu 163/3
3 Golla Suresh PRF011800033993 1.7.2018 164/1,16 4.22
Babu 4/2
Total 16.56
2
KVL, J
WP No.5415 of 2019
The Tahsildar, Guduru has further informed in the reference (1) cited that Sri Katragadda Krishna and 18 other farmers of Tharakathuru village had represented that there are objectors from their side for excavation of the fish ponds by Sri Golla Venkata Nancharayya land others at the village. It is submitted that when Sri Golla Venkata Nancharayya S/o Nagamuniyya commenced excavation of the pond, work was stopped by the Tahsildar, Guduru.
The Tahsildar, Guduru has reported in the reference (1) cited that the excavation work of the fish ponds was again started on 6-4-219 by Sri Golla Venkata Nancharayya, which provoked the local villagers to submit a representation to the Tahsildar, Guduru to stop the work. The Tahsildar, Guduru had informed Sri Golla Venkata Nancharayya to stop work as the Dist. Administration was busy with the general elections work, but he did not heed the Tahsildar's orders but is excavating the fish ponds.
The Tahsildar, Guduru has further reported in the reference (1) cited that the drinking water storage tank of the Machilipatnam Municipality is situated less than 10 meters away from the proposed fish ponds and there is every chance of pollution from the fish culture in future, hence, Tahsildar, Guduru has requested the Collector, Krishna to cancel the provisional registration for the fish ponds The RDO, Machilipatnam has also reported in the reference (2) cited that there is possibility of pollution to the drinking water storage tank of the Machilipatnam Municipality from the adjacent fish ponds proposed at Tharakaturu village and the provisional registrations issued by the DLC may be re- examined and cancelled by the DLC, as the SS tank of the municipality is the only source of drinking water to Machilipatnam and also to 20 other villages.
In view of the observations made by the Tahsildar, Guduru and the RDO, Machilipatnam, the three provisional registrations as detailed in paragraph (1) of this order issued by the DLC, Krishna District are kept in abeyance and the orders are hereby issued to stop the excavation work of the fish ponds at Tharakathuru village of Guduru Mandal with immediate effect until further orders from the DLC, Krishna District. (Orders of the District Collector & Chairman, Dist. Level Committee (DLC) for Regulation of Fresh Water Aquaculture, Krishna District have been obtained) 3 KVL, J WP No.5415 of 2019 Sd/-
Member Convener & Jt. Director of Fisheries, DLC, Krishna Dist. Machilipatnam."
When the writ petition came up for admission on 22.04.2019, this Court passed the following order in IA No.1 of 2019.
".....As seen from the record, in the previous report of the Tahsildar, dated 04.06.2018, it was specifically stated that the distance between the summer storage tank and the proposed fish ponds is about 100 meters. According to guideline 7.9 of G.O.Ms.No.7 dated 16.03.2013 'fresh water aquaculture farms should maintain a minimum distance of at least 10 meters from the nearest drinking water source'. The report of the Tahsildar clearly shows that the said condition is not violated and that the summer storage tank is at a distance of 100 meters, and hence, there shall be an interim order suspending the proceedings No.FISH/PWAOMSV/1/2019 dated 16.04.2019 issued by the third respondent, pending further orders."
On 24.07.2021, this Court passed the following order:
"This writ petition is filed 'to declare the proceedings dated 16.04.2019 issued by the 3rd respondent keeping the provisional registrations of fresh water aquaculture dated 24.03.2018 and 01.07.2018 issued by the 2nd respondent, in abeyance, as illegal and arbitrary.' Case of the petitioners is that, Sri Visweswara Swamy Devasthanam of Tarakaturu village is the owner of the land admeasuring an extent of Ac.9.17 cents situated in RS No.165 of Tarakaturu village, Guduru Mandal, Krishna District; the 1st petitioner is the lessee in respect of the land admeasuring an extent of Ac.2.29 cents out of Ac.9.17 cents being the highest bidder in the public auction held on 02.11.2016 for a period of five years; the remaining land i.e., admeasuring an extent of Ac.6.88 cents is under enjoyment of the archakas of the said temple, who in turn leased out the said land in favour of the 1st petitioner for a period of 12 years under an agreement dated 26.12.2016; thus the 1st petitioner is in possession and enjoyment of the entire extent of Ac.9.17 cents in RS No.165 of Takaturu village; there is a summer storage tank situated in an extent of Ac.224.00 cents at Tarakaturu village; the subject land is situated to the west of the said summer storage tank and 4 KVL, J WP No.5415 of 2019 there is 100 meters distance between the summer storage tank and the subject land; the 2nd petitioner having obtained lease from the owners of the land admeasuring an extent of Ac.3.17 cents in Sy.Nos.163/3 and 162/1 and an extent of Ac.4.22 cents in Sy.Nos.164/1 and 164/2 of the same village, applied for fresh water aquaculture in respect of the said land; the 2nd respondent was granted permission vide provisional registration certificate dated 01.07.2018; when the petitioners started digging the tank in pursuance of the provisional permission, one Katragadda Naga Babu and others, lodged a complaint in 'Meekosam' programme stating that construction of fish ponds in the subject lands may lead to damage to the neighbouring agricultural lands and also to the summer storage tank of Machilipatnam Municipality situated in Tarakaturu village; the said complaint was referred to the Fisheries Development Officer, Machilipatnam, the Tahsildar, Guduru Mandal, Mandal Agricultural Officer, Guduru, the Assistant Engineer, Irrigation Department and the Deputy Director, Ground Water Department to enquire and submit their reports; they submitted reports stating that the construction of fish ponds in the subject lands do not cause any damage either to the neighbouring lands or to the summer storage tank and recommended to continue the provisional licenses issued to the petitioners; the Tahsildar, Guduru in her report dated 04.06.2018 specifically stated that the distance between the summer storage tank and the proposed fish ponds is about 100 meters; as per Clause 7.9 of G.O.Ms.No.7 dated 16.03.2013, the distance between the aquaculture farm and nearest drinking water source should be at least 10 meters and hence, no action has been taken on the said complaint of K.Naga Babu; when the petitioners started digging the tank in the last week of March, 2018, again one K. Krishna, father of K.Naga Babu and others tried to interfere with their work, petitioners filed a suit in OS No.179 of 2019 on the file of the Principal Junior Civil Judge, Machilipatnam and obtained temporary injunction on 09.04.2019; when the work is in progress, the said K.Krishna also made a representation to the Tahsildar, Guduru Mandal alleging that construction of aquaculture ponds in the subject lands may lead to damage to the summer storage tank; basing on the said complaint, the Tahsildar along with his subordinates brought the police personnel of Guduru PS to the subject ponds on 16.04.2019 and stopped the work; the impugned proceedings 5 KVL, J WP No.5415 of 2019 dated 16.04.2019 issued by the 3rd respondent were served on the petitioners keeping the permission granted to the petitioners, in abeyance; the said impugned proceedings discloses that the Tahsildar has reported that there is possibility of pollution to the drinking water storage tank, as the water storage tank is situated in less than 10 meters distance from the proposed fish ponds; the Revenue Divisional Officer and the Tahsildar have recommended for cancellation of the provisional permissions; the 3rd respondent is not competent to keep the provisional permission in abeyance and the District Collector alone has right to cancel the registration. Hence, the writ petition.
When the matter came up for admission on 22.04.2019, the impugned proceedings dated 16.04.2019 were suspended. Counter-affidavit is filed along with the vacate stay petition on behalf of respondents 1 to 3 by the 3rd respondent, stating inter-alia that on 15.04.2019, the Tahsildar, Guduru Mandal inspected the subject lands and the Mandal Surveyor measured the distance between existing summer storage tank and the newly formed fish tank bund and found that the distance between them is about 3 meters and less than the stipulated 10 meters, which is contrary to G.O.Ms.No.7 dated 16.03.2013 of the Fisheries Department; in view of the said report of the Tahsildar, the provisional licenses were kept in abeyance; the Revenue Divisional Officer and the Tahsildar, Gudur, have clearly indicated that there is possibility of pollution to the drinking water storage tank of the Machilipatnam Municipality from the adjacent proposed fish ponds and hence the provisional registrations have to be re-examined; the Tahsildar report dated 04.06.2018 is incorrect and disciplinary proceedings are initiated against the Tahsildar and other officers who have given incorrect reports to the District Level Committee; the Commissioner, Machilipatnam Municipal Corporation also inspected the subject tanks on 22.04.2019 and recommended to stop digging of proposed fish tanks vide his letter dated 22.04.2019; present Tahsildar inspected the subject lands on 16.04.2019 and measured the distance between the fish tank bund and the summer storage water tank and found that it is about only three meters and hence, prays to vacate the interim stay granted by this Court on 22.05.2019.6
KVL, J WP No.5415 of 2019 Counter-affidavit is also filed by the 5th respondent- Tahsildar, reiterating what is stated by respondents 1 to 3; it is further stated that the Commissioner of Endowments Department directed the Assistant Commissioner, Endowments to issue notice to the Archakas and see that the land is taken back by the Archakas from the petitioners, as the lease is in violation of the Lease Rules; the order dated 07.08.2017 permitting the Archakas for conversion of the land into the fish tank is also kept in abeyance and that the respondents have got right to keep provisional permissions under abeyance, as the 1st petitioner failed to pay the lease amount for the years 2017-18 and 2018-19.
In the light of the above pleadings, Sri K. Chidambaram, learned counsel for the petitioners submits that an Advocate Commissioner may be appointed to note down the distance between the proposed fish tank and the summer storage water tank, as there are two contradictory reports with regard to the distance. He further submits that the petitioners would bear the expenses of the Advocate Commissioner and other incidental expenses.
In view of the same, Mrs Kiranmyee Mandava, Advocate is appointed as Advocate Commissioner to inspect the subject lands to note down the distance between the proposed fish tank of the petitioners and the summer storage water tank of the Machilipatnam Municipal Corporation. She has to fix the date of her inspection by giving prior notice to the learned Government Pleaders for Fisheries and Revenue and the learned counsel for the petitioners. Her fee is fixed at Rs.30,000/- (Rupees thirty thousand only) payable by the petitioners directly. The 2nd respondent is directed to constitute a committee consisting of the officials of the Revenue Department, Fisheries Department and Municipal Corporation of Machilipatnam, Krishna District, on receiving the intimation with regard to date of inspection from the Advocate Commissioner, to assist her in measuring the distance between the summer storage tank and the proposed fish tank of the petitioners at Tarakaturu village of Guduru Mandal, Krishna District. The 3rd respondent is directed to intimate the date of inspection by the Advocate Commissioner to the petitioners and the neighbouring land owners. The Advocate Commissioner is directed to file her report along with sketch by 16.08.2021. It is made clear that subject 7 KVL, J WP No.5415 of 2019 order is passed basing on the pleadings in the writ petition and it will not have any bearing on the suit which was filed by the petitioners, on the lease granted by the Endowments Department and the other leases obtained by the petitioners."
Pursuant to the said direction, learned Advocate Commissioner, Mrs. Kiranmayee Mandava, submitted her report on 14.08.2021. As seen from the report of the Advocate Commissioner, inspection was done in the presence of the Regional Joint Director of Fisheries, Assistant Director of Fisheries, Deputy Tahsildar, Assistant Engineer of Machilipatnam Municipality and the petitioner.
So far as the measurements are concerned, relevant portion in the report of the Advocate Commissioner, reads as follows:
"Measurements: Having observed the above physical features of the inspection site, with the assistance of the three men engaged by the revenue officials, I have firstly recorded the measurement of the distance between the outer edges of the 'bund' of the fish tank to the 'bund' of the water storage tank of the Municipal Corporation. Which was measured three times in continuity of 30.5 meters each, as the measuring tape was only 30.5 meters in total length. The measurements were taken at two distinct points, one at the beginning of the fish tank bund and the other at the far end of the fish tank bund.
The recording from the 'first point' from the outer edge of the bund of the fish tank up to the summer water storage tank of the Municipal Corporation measured 94 meters including the set back area within its boundary measuring 13 meters. And the recording from the 'second point' from the fish tank from the outer edge of the bund up to the summer water storage tank of the Municipal Corporation measured 97 meters including the set back area of 13 meters within its boundary.
I am duly enclosing a sketch prepared by me of the site with measurements as mentioned above."
As seen from the said report, the distance between the fish tank and the summer storage tank is around 94 - 97 meters. But as seen from the impugned proceedings dated 16.04.2019, the Tahsildar vide his report dated 16.04.2019 stated that the drinking storage tank of 8 KVL, J WP No.5415 of 2019 Machilipatnam Municipality is situated less than 10 meters away from the proposed fish ponds and there is every chance of pollution and requested the Collector to cancel the provisional registration. But as seen from the report of the Advocate Commissioner, the said statement is not correct.
In view of the facts and circumstances of the case, the 2nd respondent is directed to take into account of the report of the learned Advocate Commissioner dated 14.08.2021, reconsider the issue and issue appropriate proceedings to the petitioner accordingly, as expeditiously as possible, preferably within a period of four weeks from the date of receipt of a copy of this order.
As there is huge discrepancy between the report of the Advocate Commissioner and the report of the then Tahsildar, Guduru dated 16.04.2019, the Registry is directed to mark a copy of this order along with the report of the learned Advocate Commissioner to respondents 1 to 5 for enquiring into the issue and taking necessary action against the concerned Tahsildar, who gave report dated 16.04.2019. The effort made by Mrs. Kiranmayee for inspecting the subject land and reporting to this court are appreciated.
The writ petition is, accordingly, disposed of. No order as to costs. Miscellaneous petitions, if any pending, in this writ petition, shall stand closed.
________________________ KONGARA VIJAYA LAKSHMI, J Date: 18.08.2021 Note: Registry is directed to mark a copy of this order along with the report of the learned Advocate Commissioner to respondents 1 to 5. (BO) BSS 9 KVL, J WP No.5415 of 2019 HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI Writ Petition No.5415 of 2019 36 Date: 18.08.2021 BSS