Andhra Pradesh High Court - Amravati
S.Venkata Ramana, vs State Of Andhra Pradesh on 4 November, 2022
Author: M. Ganga Rao
Bench: M. Ganga Rao
THE HON'BLE SRI JUSTICE M. GANGA RAO
WRIT PETITION No.21995 OF 2020
ORDER:
This writ petition is filed to issue a Writ of Mandamus declaring the action of the respondents 2 to 6 in not allowing the petitioner to draw water from bore well for supplementing the losses from evaporation, seepage, etc., to his aquaculture field situated in Krapa Sankarayyagudem Village, Ainavilli 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 Smt. Pulipati Radhika, learned counsel for the petitioner and learned Government Pleader for Fisheries.
3. The gravamen of the petitioner is that the petitioner has been cultivating aquaculture in the fish tank covered by the land extent Ac.5.10 cents situated in Sy.Nos.62/2, 63/7, 63/7, 62/1, 62/2, 62/2 and 62/1 of Krapa Sankarayyagudem Village, Ainavilli Mandal, East Godavari District. As the income source through the cultivation is meager and not sufficient, he has applied for issuance of permissions before the competent authority for existing aquaculture in the aforesaid land. Considering the existing aquaculture farm, as per G.O.Ms.No.7 dated 16.03.2013 and as amended by G.O.Ms.No.15, 2 Animal Husbandry, Dairy Development and Fisheries (Fish) Department, dated 26.05.2015, permissions were granted to the petitioner for continuation of existing aquaculture in an extent of Ac.4.08 cents out of total farm area of Ac.5.10 cents in the aforesaid survey numbers by issuing the Certificate of Registration of Existing Fresh Water Aquaculture Farm dated 19.02.2016. He spent huge amounts for maintenance of aquaculture farms and he has been doing aquaculture as per the guidelines issued in G.O.Ms.No.7 dated 16.03.2013. However, the respondents 3 to 6 are not allowing him to use the bore wells dug in the land, stating that it was contrary to the provisions of WALTA Act, 2002 and Clause 7.15 of G.O.Ms.No.7 dated 16.03.2013. However, he is cultivating the fresh water aquaculture in the fish ponds by drawing water from irrigation canals and drainage channels by paying water cess, but he is drawing the water from the bore wells to replenish the evaporated water in the fish ponds only as per Clause 7.15 of G.O.Ms.No.7 dated 16.03.2013. Moreover, the aqua ponds are being filled only with the fresh water for aquaculture, but to fill with any salt water. Due to water evaporation and shortage of oxygen in the water, he is using bore wells to draw the water once in a week at least 10% of the tank as per Clause 7.15 of G.O.Ms.No.7 dated 16.03.2013. But, the respondents 3 and 4 arbitrarily and contrary to law are objected the using of bore wells and draw the water in his aquaculture farm by seizing the bore wells, which is illegal, 3 arbitrary and contrary to Clause 7.15 of G.O.Ms.No.7 dated 16.03.2013.
4. This Court, on 04.12.2020, granted interim order in line with the earlier orders passed by this Court that the bore well in the petitioner's fields should be restored with a strict direction that it shall be used only once in a week for a period of four hours on that day for refreshing the water in the petitioner's aqua culture fields. It is also directed that the officers 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 the bore well is not used thereafter. The respondents 2 to 5 are therefore directed to permit partial restoration of the bore well usage of that limited purpose. By virtue of the said order, the petitioner is continuing the aquaculture using the bore well water.
5. The 5th respondent - Assistant Inspector of Fisheries filed his counter stating that the agriculture farmers of Krapa Sankarayyagudem Village during the month of November, 2020 submitted a complaint against the unauthorized salt water aquaculture of the petitioner that salt water aquaculture may cause adverse impact on the surrounding agriculture lands, coconut fields and groundwater sources and also cause health hazards to the villagers. To stop the petitioner from the salt water prawn culture 4 activities, the 5th respondent along with the Village Revenue Officer have physically inspected the fish tank of the petitioner on 22.11.2020 to enquire into the complaint. On inspection, it is observed that the petitioner was involved in unauthorized culture of L.Vannamei shrimp in saline water conditions through bore well, 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 conditions. Then, the 5th respondent has served a notice dated 22.11.2020 to the petitioner to stop his unauthorized L.Vannamei shrimp 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 and G.O.Ms.No.15 dated 26.05.2015, but he did not adhere to the notice. However, he filed this writ petition with false contentions and obtained the interim order from this Court. During the visit of the 5th respondent to the aquaculture farm of the petitioner, it is observed that the petitioner is resorting to unauthorized culture of L.Vannamei shrimp by using saline water drawing through the bore wells as main source of saline water, by violating the interim order passed by this Court. The Clause 7.15 in G.O.Ms.No.7 is applicable only to the farmers doing fresh water aquaculture but not for L.Vennamei shrimp culture to be taken up in saline water conditions within the limits of 0.5 ppt. as no person shall be allowed to do 5 L.Vannamei culture in fresh water/inland waters without permission and contrary to the guidelines prescribed in G.O.Ms.No.15 dated 26.05.2015. However, this Court passed the interim orders on 04.12.2020. But, Clause 7.15 of G.O.Ms.No.7 is not applicable to the petitioner, who is involved in culture of L.Vannamei in saline water conditions. The petitioner has not only violated the basic guidelines prescribed for fresh water aquaculture vide G.O.Ms.No.7 dated 16.03.2013 but also the guidelines exclusively prescribed for L.Vannamei Shrimp culture in fresh water area vide G.O.Ms.No.15 dated 26.05.2015. Therefore, there are no merits in the writ petition.
6. Smt. Pulipati Radhika, learned counsel appearing for the petitioner, vehemently submits that the petitioner has been carrying on the fresh water fish culture in the tank since long time and he was granted Certificate of Registration for existing fresh water aquaculture farms 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. She further states that in strict adherence to the guidelines issued in G.O.Ms.No.7 dated 16.03.2013 only, the petitioner is 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 he never resorted to any shrimp 6 culture much less L.Vannamei and the allegation is made only at the instance of the other aquaculturists in the village.
7. Learned Government Pleader for Fisheries, while reiterating the averments of the counter, states that the petitioner's fish tank was registered as per the guidelines issued in G.O.Ms.No.7 dated 16.03.2013 only to conduct fresh water aquaculture, but the petitioner is 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 petitioner is 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 petitioner is using the chemicals to rear the shrimp culture, but he is not entitled to use bore well water which are saline under the guise of supplementing or replenishing evaporated and seepage water, as per Clause 7.5 of G.O.Ms.No.7 dated 16.03.2013.
8. Having considered the facts and circumstances of the case, submissions of the learned counsel and on perusal of the record, this Court found that if the petitioner's land is being submergible and 7 inundated, then only permissions will be given to use the land for fresh water aquaculture. 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 petitioner is entitled to use the subject land for aquaculture by digging the fish tank. 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 petitioner is entitled only to do fresh water aquaculture in the fish tank 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.
9. As per the averments of the writ affidavit, the land of the petitioner is submergible and not fit for paddy cultivation and the agriculture is not profitable. He dug the fish tank in the subject land and the same was registered as existing fish tank only to carry out the fresh water aquaculture in the tank. For doing fish culture in the tank, the petitioner state that he is using the canal water and letting the waste water into the drain, for which he is paying water tax to the Government.
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10. 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 if the bore wells are existing prior to the promulgation of WALTA Act, 2002 and under the provisions of the said Act, the petitioner has to register the existing bore wells, but he has 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 tank under the guise of replenishing the evaporated and seepage of water and to provide oxygen to the fish does not arise.
11. 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 using the bore well saline water under the guise of replenishing/supplementing the evaporated and seepage water even 9 through the bore well saline 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 petitioner's fish tank is being maintained through canal water and fresh water can be supplemented through the canal water only. On inspection by the respondents also, it is found that the petitioner is 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.
12. 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 petitioner and nothing is stated with regard to the said endorsement, without which continuing the fresh aquaculture is unauthorized. The guidelines issued in G.O.Ms.Nos.7 and 15 and provisions of the 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 10 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.
13. In those circumstances, this Court felt it appropriate to dispose of the writ petition giving liberty to the petitioner to approach the 5 th respondent - Assistant Director of Fisheries or any other competent authority to get the required endorsement on the existing permissions for doing fresh water aquaculture only and the petitioner is also directed to give an undertaking in the form of affidavit to the aforesaid authority that he 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 land is situated in submergible or inundated and there is sufficient canal water. As it appears that bore well water is being used only for the purpose of rearing the shrimp culture with saline water, in the event of petitioner resorting for unauthorized L.Vannamei shrimp culture, the respondent authorities are at liberty to inspect the petitioner's' fish tank and conduct mediatorsnama/panchanama with two independent witnesses along with officials. 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 11 29 of 2020 and the Rules made thereunder, directing the petitioner to stop shrimp culture, otherwise he will be liable for penal action and his 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 his 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.
14. Accordingly, the Writ Petition is disposed of. No order as to costs.
15. As a sequel, miscellaneous petitions pending, if any in the writ petition, shall also stand closed.
__________________________ JUSTICE M. GANGA RAO 04.11.2022 anr 12 THE HON'BLE SRI JUSTICE M.GANGA RAO WRIT PETITION No.21995 OF 2020 04-11-2022 anr