T. N. Godavarman
Thirumalpad Vs. Union of India & Ors  Insc 191 (10 April 2006)
Pasayat & S.H. Kapadia
Nos.1486-87 in Writ Petition (C) No.202 of 1995 With (I.A. No.1492 in WP(C)
No.202/95, I.A. No.1508 in WP(C) No.202/95, WP(C) No.95/2006, WP(C)
No.111/2006, I.A.No.1497-1498 in WP(C) No.202/95, I.A. No.1509-1511 in WP(C)
No.202/95, I.A. No.1514 in WP (C) No.202/95, I.A. No.1515 in WP (C) No.202/95,
I.A. No.1523 in WP(C) No.202/95, I.A. No.1524 in WP(C) No.202/95, I.A. No.1525
in WP(C) No.202/95, I.A. No.1531 in WP(C) No.202/1995, WP(C) No.155/2006)
needs of the present without compromising the ability of the future generations
to meet their own needs is called 'sustainable development', a concept based on
the principle of inter-generational equity.
this batch of cases the common issue that arises for consideration is the
validity of the recommendations made by Central Empowered Committee (for short,
'CEC') in its Report dated 20th March 2006 which concerns implementation of the
notification issued by State of Andhra Pradesh dated 04.10.1999 under section
26A of the Wild Life (Protection) Act, 1972 whose validity has been upheld by
the decision of the Andhra Pradesh High Court dated 30th July, 2001 in the case
of Dr. T. Patanjali Sastry, President, Environment Centre vs. Chairman, Andhra
Pradesh Pollution Control Board and ors. reported in 2001 (5) ALT 315. By the
impugned recommendations CEC has issued directions for demolition of all fish
tanks constructed inside the Kolleru Wild Life Sanctuary in a time bound
manner, as indicated therein. CEC has also issued directions prohibiting use or
transportation of inputs for pisciculture in the said sanctuary. The details of
the inputs are given in the report.
Kolleru Lake is one of the largest shallow fresh water lake in Asia located between the delta of Krishna and Godavari rivers in the State of Andhra Pradesh. It serves as a natural flood balancing reservoir for the
two rivers. It receives water from 67 inflowing drains and channels. It
sustains flora and fauna and people living around it. The area of the lake at
various contour levels is as under:
level at Mean Sea Level (MSL) Area At + 10 MSL 901 sq. km. (2.25 lakh acres) At
+ 7 feet MSL 675 sq. km. (1.69 lakh acres) At + 5 feet MSL 308 sq. km. (0.77 lakh
acres) It is found between the alluvial planes of river Godavari and river
Krishna due to natural geological formation covering 2 mandals in West Godavari
district and 7 mandals in Krishna district.
it is a wet land ecosystem. In its mean season, the lake has mean water level
of 3 feet above the mean sea level, popularly known as plus 3 contour. The
water surface area in the contours of the lake vary, depending upon the seasonal
flow of water into the lake. In the normal monsoon, the lake extends from plus
7 contour to plus 10 contour. At plus 3 contour level the lake spreads over 70
sq. miles. At plus 7 contour the capacity of the lake is 30 tmc. At plus 10 contour
the capacity of the lake is 54 tmc, covering an area of 348 sq. miles. The peak
level inflow into the lake is of the order of 1,10,000 cusecs. 4 rivers, 18
drains and 22 irrigation channels empty out into the lake and the drain Uppteru
is the only outlet to the sea. There are 122 villages in the lake area out of
which 46 are bed villages and 76 are belt villages. In the belt villages, above
plus 5 contour, cultivation is being done both in the patta lands as well as in
the government lands on payment of cist. The lake supports bio-diversity and
high biomass of fish plankton which constitute the source of food for birds.
Kolleru Lake extends over 901 sq. kms. at plus 10 contour. However, only
308 sq. kms. out of 901 sq. kms. have been declared as wild life sanctuary.
has been done in order to strike a balance between the rights of the people
living in and around the lake on one hand and to protect the ecosystem on the
of India is the signatory to 1971 Convention
of Ramsar (Iran) where it is declared that Kolleru
is a wet land ecosystem of international importance. In the said convention it
is decided that encroachments in the lake would not be tolerated.
said convention is also known as Wet Land Convention.
FOR ISSUANCE OF THE NOTIFICATION DATED 4.10.1999
above notification came to be issued under following circumstances. Submersion
of delta facility in the upstream area on account of blockage of free flow of
water into the lake caused by encroachers.
thousands of land stood converted into fish tanks resulting in the blockage of
the drain system of Krishna and West Godavari districts which chooses the said lake as a natural route to
sea. Lakes were formed by the encroachers over areas ranging from 30 to 400 acres
by raising bunds upto the height of 20 to 25 feet above the ground levels and
thereby diminishing the retention capacity of the lake.
it has resulted in submergence of upstream mandals causing huge crop losses.
notification above-mentioned seeks to preserve the lake both for the benefit of
the migratory birds and to avoid floods. The total lake area in terms of
hectares is one lac hectares out of which an area admeasuring 30,855.20
hectares is constituted as wild life sanctuary.
basic argument advanced on behalf of the objectors is that acquisition is the
basis for issuance of notification/official declaration under section 26A of
the said 1972 Act. It is submitted that although final notification has been
upheld, the terms and conditions of the notification indicate that demolition
of bunds can only take place after acquisition by the government of private
lands. In this connection, it is urged that apart from government lands the
sanctuary also covers private lands; that, the owners of these private lands
are entitled to construct bunds in their own lands till the government acquires
such lands. It is submitted that from 1976 upto 4th October, 1999 permissions
to construct bunds have been given; that huge investments have been made in the
business of pisciculture and that thousands of employees are working to earn
their livelihood from these activities. It is submitted that the notification
covers an entire package and acquisition is a part of that package.
Consequently, the government should first acquire the rights of the objectors
before ordering demolition of the fish tanks/bunds.
order to answer the above arguments we may briefly state the relevant
provisions of Wild Life (Protection) Act, 1972 which has been enacted to
provide for the protection of wild animals, birds, plants and for matters
connected therewith. This Act is enacted by Parliament in exercise of its
powers under Articles 249 and 250 of the Constitution, pursuant to resolutions
passed by Houses of Legislatures of all States including Andhra Pradesh.
Act came into force in the State with effect from 1.3.1973. It may be useful to
note the Statement of Objects and Reasons of the said Act:
rapid decline of India's wild animals and birds, one of
the richest and most varied in the world, has been a cause of grave concern.
Some wild animals and birds have already become extinct in this country and
others are in the danger of being so. Areas which were once teeming with wild
life have become devoid of it and even in Sanctuaries and National Parks the
protection afforded to wild life needs to be improved. The Wild Birds and
Animals Protection Act, 1912 (Act 8 of 1912), has become completely outmoded.
The existing State laws are not only out-dated but provide punishments which
are not commensurate with the offence and the financial benefits which accrue
from poaching and trade in wild life produce.
such laws mainly relate to control of hunting and do not emphasize the other
factors which are also prime reasons for the decline of India's wild life, namely, taxidermy and
trade in wild life and products derived therefrom." Section 2(26) defines
"sanctuary" to mean an area declared, whether under section 26A or
under section 36, or deemed under sub-section (3) of section 66, as a wild life
sanctuary. Section 2(37) defines "wild life" to include any animal,
butterflies, fish and aquatic or land vegetation which forms part of any
habitat. Chapter IV deals with sanctuaries and national parks. Section 18 deals
with 'declaration of sanctuary' by a preliminary notification with definite
boundaries where the government intends to constitute any area as a sanctuary,
provided it is satisfied that such area is of adequate ecological significance for
protecting or developing wild life or its environment. Under section 19 the
collector is required to inquire into and determine the existence, nature and
extent of the rights of any person in or over the land comprised within the
sanctuary. Section 21 deals with proclamation by the collector and under
section 22 the collector has to make inquiry after service of the prescribed
notices upon the claimants. Sections 24 and 25 deal with acquisition. Under
section 26A the State government shall make declaration of an area as a
sanctuary. After such declaration, any alteration of the boundaries of
sanctuary can be made only by a resolution passed by the State legislature.
Section 29 specifically prohibits carrying out of commercial activity as well
as diversion, stopping or enhancement of the flow of water into or outside the
sanctuary. Section 29 reads as follows:
Destruction, etc., in a sanctuary prohibited without a permit. No person shall
destroy, exploit or remove any wild life from a sanctuary or destroy or damage
the habitat of any wild animal or deprive any wild animal of its habitat within
such sanctuary except under and in accordance with a permit granted by Chief
Wild Life Warden and no such permit shall be granted unless the State
Government being satisfied that such destruction, exploitation, or removal of
wild life from the sanctuary is necessary for the improvement and better
management of wild life therein, authorises the issue of such permit.."
The government under section 18 issued preliminary notification on 25th
September, 1995 declaring the areas specified in the schedule as 'wild life
sanctuary' and by reason thereof the collector of West Godavari and the
collector of Krishna districts took steps in implementation thereof to hear and
decide claims and to demarcate the boundary of the lake and the sanctuary. The
preliminary notification issued under section 18 and the consequential action
taken by the district collectors came up for consideration before a learned
single judge of the Andhra Pradesh High Court in the case of Kunapuraju Rangaraju
vs. Government of Andhra Pradesh and others reported in 1998 (3) ALT 215.
order dated 5.3.1998, the learned single judge held that no interference with
the rights of the petitioners could take place without a notification under
section 26A. Accordingly, directions were given to the State government to take
steps for issuance of such notification. Pursuant to the said directions,
proclamation under section 21 of the said Act was issued by the respective
district collectors of the above-mentioned two districts calling for
objections. After conducting an inquiry under section 22 and after considering
all the objections, final notification as required under section 26A of the Act
was issued on 4.10.1999 which was published in government gazette on 5.10.1999
determining the rights of the parties in terms of section 24 in the following
existence, nature and extent of rights as determined by District Collector, Krishna vide proceedings No. E6/1236/97,
Dated: 01-09-1998 and by the District Collector, West Godavari, Eluru in Rc.No. D6/11717/ 96,
Dated: 08-08-1999 are as follows:
Right to do
fishing with traditional methods using mavus, nets of size (which does not
cause damage to seed but catches only fish of harvestable size) which will be
specified separately by the Chief Wild Life Warden of Andhra Pradesh.
No person shall
form any tank for Aquaculture or for any other purposes.
was existing in private lands, as on the date of notification, fishing in
traditional methods shall be permitted, without causing environmental hazard,
till the Government acquires such private lands.
Right to do
traditional Agriculture without using pesticides and chemicals.
Right to use the
ordinary boats, without motor for the movement of the people.
Right of way
with existing Roads connecting main habitations and their maintenances by
providing sufficient number of vents for the roads existing at the time of
Notification of Kolleru Wild Life Sanctuary U/s. 18 of Wild Life (Protection)
Act, 1972 without permitting new roads and culverts.
maintain existing water courses and drains necessary to avert submersion of
agricultural lands surrounding Kolleru lake.
Other rights and
conditions as specified U/s. 27 to 34 and other provisions of the Wild Life
(Protection) Act, 1972.
connection shall be given for domestic use only and not for Aquaculture or any
activity connected therewith.
The 'D' form pattas granted or lease
of land allowed in the area in favour of any assignee or lessee as the case may
be including three societies viz., Gangaraju Fishermen Co-operative Society, Srungavarappadu;
Sringavarappadu Fishermen Cooperative Society; Sanjaya Gandhi Fishermen
Co-operative Society, Srungavarappadu of Krishna District will be cancelled.
The claimants are not entitled to any compensation under Wild Life (Protection)
Act, 1972 as they were assigned the lands by the Government on free of land
D-Farm pattas to the extent of Ac.
2882.00 cts issued to the individuals as per G.O.Ms.No. 118 Revenue (Q) Dept.,
Dated: 24-01-1976 in West Godavari District wherein
they were permitted to construct fish tanks on the said lands are liable to be
cancelled and these lands will be resumed under the provisions of Wild Life
(Protection) Act, 1972. These D-Farm patta holders are not entitled for any
compensation except ex gratia as provided by the Government.
The annual Licences which are being
issued by the Fisheries Department for Fishery purpose indicating the areas
allotted are to be discontinued.
Encroachments in conditional patta
lands of Siddapuram village of Akiveedu Mandal are to be evicted,
The village site Poramboke of Siddapuram village of
Akiveedu Mandal measuring Ac. 16.67 cts is hereby excluded from the
jurisdiction of the Sanctuary.
Any other encroachments activities,
which are not permitted specifically are liable to be removed/stopped
forthwith." From the above, it is clear that the right of the local
fishermen to do fishing by traditional methods is not taken away, but
aquaculture in the form of any tank is prohibited. Further, wherever pisciculture
existed in private land, as on the date of the notification, fishing in
traditional method is permitted without causing environmental hazard, till the
government acquires such private lands under the said 1972 Act. The right to do
traditional agriculture without using pesticides and chemicals is also
permitted under the notification. Lastly the encroachment activities are directed
to be stopped, forthwith. The final notification, therefore, seeks to regulate,
in public interest and in the interest of ecology, activities, such as
aquaculture, pisciculture, prawn culture and shrimp culture, basically to
preserve the identity of the lake which otherwise is likely to become extinct
within 12 years.
therefore, are of the opinion that having regard to the larger public interest
and in view of the fact that the Notification under section 26A has been issued
pursuant to the orders of the High Court in the case of Kunapuraju Rangaraju
(supra), the Notification issued under section 26A needs to be enforced
immediately. We are informed that in the previous year on account of these
bunds/fish tanks free flow of water into the sea was blocked for 40 days. In
any event, the rights of those fishermen surviving on a traditional method of
fishing have not been taken away, they have been duly protected.
those who had illegally constructed bunds and who were using harmful manures
have been prevented from doing so by reason of the said Notification. The State
government has fulfilled its obligation by issuing such Notification. When the
rights of the fishermen to do fishing by traditional methods have not been
taken away, and when the material placed on record before us shows that there
is obstruction to the free flow of water in the lake bed area due to raising of
bunds whereby the retention capacity of the lake is diminished, the government
is right in regulating the rights under the said Notification. If such
encroachments are not removed immediately the right of the farmers in the
upstream mandals to do cultivation would be in jeopardy, consequently, it is
their right to live guaranteed under Article 21 of the Constitution which is
us it has been repeatedly urged that the objectors have made huge investments
over the years, that they were permitted to put up bunds under permissions
given by the collector and that equity demands that a balance be struck between
preservation of the lake and the livelihood of persons surviving on aquaculture
and pisciculture. It is further argued that mud bunds constituted a part of
traditional fishing practice and consequently this Court should not direct
demolition of these bunds.
not find any merit in the above arguments for the following reasons. Firstly,
section 29 specifically prohibits commercial activity inside the Sanctuary. It
prohibits commercial activity which diverts, stops or increases the flow of
water into or outside the Sanctuary. With the issuance of the final
Notification formation of fish tanks for aquaculture or for any other purpose
is prohibited as they obstruct free flow of water both into or outside the
the Notification dated 4.10.1999 provides a limited right to carry on fishing
inasmuch as it permits fishing with traditional methods using mavus and nets.
It expressly, however, prohibits the objectors from forming any fish tank(s)
for aquaculture or for any other purpose. It also expressly provides that
wherever pisciculture was existing on the date of the notification in private
lands, fishing in traditional methods shall be permitted, without causing
environmental hazard, till the government acquires such private lands. It also
cancels the pattas granted in the past. In our view, therefore, the
Notification regulates aquaculture, pisciculture, prawn culture, shrimp culture
the argument advanced on behalf of the objectors that mud bunds formation is
compatible with traditional fishing practice and, therefore, should be allowed
to continue to exist, has no merit.
bund is formed in a sanctuary or a lake it seeks to encapsulate an area which
in turn obstructs free flow of water in the lake bed area. As stated above,
formation of bund reduces the retention capacity of the lake. These formations,
if allowed, would destroy the lake. In view of the provisions of section 26A
read with section 29 all commercial activities which seek to destroy the
ecology, stands prohibited. Compatibility of mud bunds with the traditional
fishing practice in a lake is a concept different from formation of mud bunds
inside the Sanctuary. Notification dated 4.10.1999 does not cover the entire
area of the lake. Out of 901 sq. kms. of Kolleru lake, an area of 308 sq. kms. alone
is notified as Sanctuary. This indicates that the government has balanced the
needs of sustainable development with the livelihood of persons surviving on
the resources of this lake. Lastly, the preliminary notification was issued as
far back as in 1995 under section 18 of the Act. Therefore, the objectors were
put to notice about the future course of action.
it is not open to the objectors now to say that they have made huge investments
which would be lost if the report of the CEC is implemented. As stated
hereinabove, in the preceding year free flow of water into the sea was blocked
for 40 days. Such blocking of water also affects the livelihood of farmers
cultivating lands in the upstream mandals. The oil cakes used as manure also
pollute the Sanctuary. It is true that there are other effluents which also
pollute the lake. By issuance of the Notification the government has taken a
step in the right direction and it is not open to this Court to tell the
government as to which of the three effluents in terms of their discharge
should be regulated first in point of time.
present case, as stated above, the blockage is due to discharge of effluents
from three sources, namely, fish tanks in and around the lake containing high
concentration of nutrients, effluents from municipal drainage and effluents
emerging from the industries located in an around the above two districts.
Destruction of the fish tanks is one of the steps taken by issuance of the
Notification. That has to be done at the earliest point of time, particularly,
before the onset of the monsoon.
the above reasons, we direct the State government and its officers to implement
the directions of CEC vide para 54 of its report dated 20th March, 2006. We make it clear that the use or
transportation of inputs for pisciculture shall be stopped immediately. We,
further, clarify that the demolition of all fish tanks in a time-bound manner
shall commence with effect from April 20, 2006, as indicated vide para 54(ii). Accordingly, the interim
order granted by this Court in I.A. Nos.1486-1487 in W.P.(C) No.202 of 1995,
shall stand vacated.
all I.As/writ petitions/objections filed by various objectors, shall stand