IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.24989 of 2008 BETWEEN: K.Satyanarayana and others .. Petitioners AND The Government of Andhra Pradesh, Rep., by its District Collector, East Godavari District, Kakinada and others .. Respondents ORDER: This Court issued Rule Nisi on 24.11.2008. The respondents filed counter affidavits and additional counter affidavit. Heard Sri K.V.N.Bhupal, learned counsel for the writ petitioners, learned Government Pleader for Fisheries and Sri P.Radheev Reddy, learned counsel for the 1st and 2nd respondents. The writ petitioners filed the present writ petition for a Writ of Mandamus declaring the scheme of construction of G.M.R. Energy Barge Mounted Power Project at Divisions 13 and 14 of Yetimoga (V) at Kakinada Port Area, which was sanctioned by the 1st respondent without providing for any rehabilitation measures to the affected members of the petitioners’ society, as arbitrary, illegal and unconstitutional. Several facts had been averred, in detail, in the affidavit filed in support of the writ petition. It is stated that all the petitioners are members of Gangaputra Yuvajana Sankshema Sangam and also local leaders in the said Fishermen Community, and therefore, they are authorized by their Society through a Resolution, dated 19.10.2008 for filing the present writ petition, for issuance of a Writ of Mandamus or any other appropriate writ or direction or order of like nature, declaring the scheme G.M.R. Power Project sanctioned by the 1st respondent without providing for any rehabilitation measures to the affected fishermen, as arbitrary and invalid. It is further stated that since times immemorial, the Fishermen on the East-Coast of Andhra Pradesh had been enjoying their right for their livelihood by fishing in the deep water in the Bay of Bengal. They had been enjoying this right by dividing the Coastal Sea Belt into several Sectors/Divisions adjacent to each village with a dedicated understanding that the Fishermen of one sector should not transgress into the water of another sector. In the year 1940, there took place arbitration by Village Panchayat where under all the Fishermen agreed to confine themselves to the zones allotted to each of them. The District Collector, East Godavari District in recognition of the Panchayat decision, allowed Divisions 13 and 14 of Yetimoga Village of Kakinada Municipal Corporation to the petitioners. While that being the long established traditional custom recognized by the State, the Government of Andhra Pradesh has now sanctioned a scheme to establish a G.M.R. Energy Barge Mounted Power Project in the Sectors/Divisions 13 and 14 by laying an Earthen Bund to run across into the deep sea, where at the end of which a power house is proposed to be set up in Ship Anchor at that point and for setting up the transformers and the administrative offices over the Bund, which covers an extent of Acs.48.81 cents of land. The 1st respondent had entrusted the execution of the same project to the 2nd respondent, which had commenced its operation in the month of April, 2008. This scheme is sanctioned without any regard to the displacement of the petitioners from carrying out the fishing operations in that area, which is the only source of their livelihood. Noticing that the Project may deprive the petitioners of their only source of livelihood, the petitioners made a representation, dated 26.12.2007 to the 1st respondent. The 1st respondent directed the 3rd respondent herein to enquire and file a report on the extent of damage the project caused to the petitioners. The 3rd respondent after due enquiry, filed his report vide Letter No.724/A2/2008, dated 18.08.2008. The report of the 3rd respondent stated that about 300 families of Fishermen Community, who resides at Yetimoga are effected by the project and that they had already suffered loss of earnings to an extent of several lakhs, calculated in accordance with the representations made by the petitioners, which should be paid to them and that the petitioners also are entitled to the rehabilitation reliefs in the form of providing alternative employment to their family members. Notwithstanding what is reported in the said report of the 3rd respondent, the Government of Andhra Pradesh, the 1st respondent herein is proceeding with the project by permitting the execution of the same by the 2nd respondent. The 2nd respondent had already laid substantial part of the Bund by which the petitioners are deprived of their livelihood. The petitioners had sent several representations to the 1st respondent, without any avail. It is also stated that the 1st respondent is bound to consider the hardship, the project causes and damages to the livelihood of the petitioners before the project is sanctioned and he is also bound to pay compensation for the loss suffered by the petitioners, as a consequence of the implementation of the project and also is bound to provide the petitioners alternative sources of livelihood in terms of rehabilitation measures. The action of the 1st respondent is utter disregard to the petitioners right to livelihood and is accordingly highly arbitrary and therefore, liable to be declared as invalid. It is further stated that the petitioners had exhausted all the remedies available to them by making suitable representations to the respondents and by holding protest demonstration. They had now no alternative or effective remedy opened to them except to approach this Court under special original jurisdiction. It is further stated that since the petitioners are already displaced from their occupations and had been starving for the lack of their livelihood. It is stated further stated that the petitioners and their family members had been doing fishing operations for the last several decades particularly in the Divisions of 13 and 14 of Kakinada Sea Port and these petitioners are only effected due to establishment of the 2nd respondent’s project and most of the area was laid an Earthen Bund to run across into the deep sea in the said division. Due to that reason, now the petitioners stopped their fishing operations for the last seven months and they are not having any other source of livelihood. If this Court did not consider the prayer of the petitioners, they would be put to serious loss and hardship. In such circumstances, the writ petitioners approached this Court praying for appropriate directions. The 2nd respondent filed counter affidavit. The 1st and 3rd respondents also filed additional counter affidavit narrating several details. No doubt it is also brought to the notice of this Court that the Director of Ports, had not been implicated as a party. It is stated in the counter affidavit of 2nd respondent that the writ petition is not maintainable. It is also further stated that the petitioners had stated that since times immemorial on the East Coast of Andhra Pradesh, they had been enjoying their right to livelihood by fishing in the deep water of the Bay of Bengal had been denied. It is also further stated that the petitioners had been enjoying their right by dividing the coastal sea belt into several Sectors/Divisions adjacent to each village with a dedicated understanding that the fishermen of one sector should not transgress into the water of another sector is not known to the 2nd respondent. The 2nd respondent is not aware of any arbitration agreement between the villagers in the year 1940 and as no material is produced before this Court about the arbitration. The contention of the petitioners that the District Collector, East Godavari District in recognition of the Panchayat decision, allowed Divisions 13 and 14 of Yetimoga village of Kakinada Municipal Corporation to the petitioners is not within the knowledge of the 2nd respondent and also for what purpose the District Collector, East Godavari District, in recognition of the Panchayat decision had allowed Divisions 13 and 14 of Yetimoga village of Kakinada Municipal Corporation is not mentioned in the affidavit. It is also stated that the petitioners had failed to file any of the above mentioned material papers and the oral statements are not substantiated by documentary evidence and hence the same cannot be taken into account for deciding the lis. It is further stated that it is not true that the State Government has sanctioned a scheme to establish a G.M.R. Energy Barge Mounted Power Project in the Sector/Divisions 13 and 14 by laying an earthen bund to run across into the deep sea, where at the end of which a power house is proposed to be set up in ship anchor at that point and for setting up the transformers and the administrative offices over the bund is not correct. The fact is that the undersigned herein had applied to the State Government for grant of permission to establish 240 MW Barge Mounted Combine Cycle Gas Turbine Power Plant at Kakinada Port and that the State Government, based on the approved master plan for Kakinada Port, having reserved the land for setting up of two numbers of Barge Mounted Power Projects in the Port area, had leased out port land to an extent of Acs.48.81 cents in Survey Nos.411 and 413. The State Government issued a G.O. Ms.No.8, I & I (Ports-I) Department, dated 03.03.2008 granting lease in favour of the 2nd respondent. A thirty years lease extendable through mutual consent was entered into between the State Government, represented by Director of Ports, Kakinada and the 2nd respondent on 29.04.2008. According to which, the 2nd respondent had to pay annual lease charges at the rate of 6% on the land value of Rs.145/- per square yard and as fixed by the Registration Department, as revised from time to time @ Rs.15.25 ps. per square yard i.e., Rs.36,02,666/- on Acs.48.81 cents in advance in one instalment. The 2nd respondent had taken possession of the land and invested sizeable amounts on the project. One of the terms of the lease agreement is that the 2nd respondent had to erect structures/buildings with all requisite and prescribed standards as per plan approved by the Engineering Wing of Port Department with required sewer drains and other infrastructure conveniences. The Barge Mounted Power Project is inclusive of power generation units located on the Barge, Switch-Yard, Water Treatment Plants, Utilities, Transformers etc., required for the plaint. The Andhra Pradesh Pollution Control Board by its order, dated 24.06.2008 had issued Consent For Establishment (CFE) for the project vide proceedings in order No.298/PCB/CFE/ROKKD/HO/2008- 205. The Government of India, Ministry of Environment and Forests (MOEF) had granted Environmental Clearance (EC) vide its proceedings dated 15.04.2008. All other approvals/permits such as (1) Permission for drawal of raw water (2) Permission for drawal of Sea Water (3) Right of Way for erecting 220 KVA Transmission Lines (4) Approval from the Andhra Pradesh Transco for power evacuation from the project (5) Approval for plant layout from SE, Ports (6) Permission for construction Power etc., had been already obtained. It is further stated that the 2nd respondent had already started civil works such as site leveling/grading, establishment of site office, mobilization of contractors etc., at site. The contention that the petitioners had made a representation to the 1st respondent and the 1st respondent had directed the 3rd respondent to file a report are known to the 2nd respondent only to that limited extent and the 2nd respondent was not a party to the report or the process of enquiry thereof. The said enquiry and the filing of the report were not known to the 2nd respondent and the same were done behind by back. Even according to the report of the 3rd respondent i.e., the Letter No.724/A2/2008, dated 18.08.2008, the 2nd respondent is only utilizing some extent of the sea water and out of vast extent of sea shore is in no way obstructing the petitioners alleged “rights” to fishing operations. The 2nd respondent is only utilizing an extent of 276 mtrs., (approx.) shore line as against 10,000 mtrs., (approx.) of shore line available to them. The other part of the sea shore is left for the petitioners to carry out their fishing operations without any hindrance. The 2nd respondent is carrying on the activity according to the terms and conditions of the Lease Agreement and is in no way obstructing the fishing operations of the petitioners. The averments made in para Nos.5, 6 and 7 of the affidavit do not call for any remarks. Certain other facts had also been narrated and dismissal of the writ petition had been prayed. In the counter affidavit initially filed by the 1st and 3rd respondents, it is stated that it is a fact that the present petitioners are residents of Yetimoga, which comes under Divisions 13 and 14 of Kakinada Municipal Corporation. By caste, they belong to fishermen community and mainly depend on Sea fishing. Generally, the fishermen used to conduct fishing changing from one place to another place in a particular area where there are potential fishing grounds. As stated by the petitioners, there was an arbitration took place between fishermen of Yetimoga, Gadimoga and Chinavalasala Villages in the presence of elders on 19.03.1940 to confirm themselves to certain areas in the Bay of Bengal for fishing. There is no evidence available, whether it was recognized by the District Collector or not. As per the report, the proposed site for G.M.R. Power Plant is also one of the fishing grounds to the Yetimoga fishermen. It is not true that the G.M.R. Energy Barge Mounted Power Plant is going to set up in Divisions 13 and 14; in fact the proposed power plant is going to be constructed near port of administrative building, Kakinada. It is further submitted that the fishermen of Yetimoga represented the District Collector, East Godavari, Kakinada stating that the livelihood of the fishermen of 600 families of Yetimoga are being affected due to construction of G.M.R. Energy Barge Mounted Power Plant. As instructed by the District Collector to report, how many fishermen families are affected and how they are affected vide letter No.E3/3623/2008; dated 14.06.2008 a detailed enquiry had been taken up and as per the feed back of the fishermen, Departmental Officers submitted a report that the following types of fishing is in practice in the area. (1) Dobbudu Vala Fishing : This type of net is operated daily by a single fisherman approximately 50 no. of nets are operated in shallow area. (2) Crab net fishing : It is also a daily fishing. Nearly 250 fishermen are operating crab nets daily. (3) Pakkidevudu Vala : About 200 fishermen are operating this type of Pakkidevudu vala fishing daily. (4) Moolakattu Vala : This net is operated by group of fishermen by rotation method. About 300 fishermen are operating Moolakattu Vala fishing in the shallow area. All the fishermen will get fishing trips twice in a month. (5) Valakattu Fishing : Valakattus are operated by the fishermen by rotation method. About 300 fishermen are operating Valakattu. All the fishermen will get fishing trips twice in a month. The proposed site is being filled for construction of proposed G.M.R. Energy Barge Mounted Power Plant to an extent of Acs.48.81 cents is shallow area and extension of sea and the fishing depends up on tidal influence. As per local detailed enquiry, the fishermen depends on different types of fishing as submitted supra will be partly affected due to filling up of Acs.48.81 cents as it is one of the fishing grounds to them and the fishermen get chance of fishing on rotation. However, it is submitted that Marine Fishing, there is no area of operation and hence, the petitioners can fish in any part of the sea. Several other facts had also been narrated and it is further stated that due to filling of the proposed site for G.M.R. Barge Mounted Power Project in an extent of Acs.48.81 cents, the fishing of fishermen of Yetimoga is partly affected as the fishermen will get the change of fishing on rotation and it is one of the fishing grounds to them. It is also stated that the petitioners are doing fishing operations for the last several decades in Kakinada Sea Port area and the fishermen are depend on only sea fishing. This was the original stand taken along with the additional counter affidavit filed by the 1st and 3rd respondents. The Joint Inspector Report, G.O.Ms.No.8, dated 03.03.2008 and also list of agreements had been placed before this Court. In the additional counter affidavit filed by the 1st and 3rd respondents, it is stated that the counter affidavit had already been filed and subsequently, the District Collector, East Godavari, Kakinada had instructed the Revenue Department, Port and Fisheries Department to conduct joint inspection of the site and to submit a report. In compliance to the instructions issued by the District Collector, the Tahasildar, Kakinada, State Port Officer, Kakinada and the Assistant Director of Fisheries, Kakinada conducted joint inspection of the site filed by G.M.R. group of companies on 01.08.2009. During joint inspection, it had come to light that the land in question belongs to Port Department and the Government in G.O.Ms.No.8, Infrastructure and Investment (Port-1) Department; dated 03.03.2008 had allotted the land on lease to the G.M.R. group of companies and concluded an agreement on 29.04.2008. It is also stated that the lease sanctioned by the Government (Port Department) and the land already filled up, the present affidavit is being filed to bring the fact of conducting joint inspection and its report to the notice of this Court. Further, it is stated that the petitioner used the site as one of the fishing grounds prior to allotment of the said site to the G.M.R. group of companies for development on lease. Moreover, there is no area of operation for Marine Fishing and hence the petitioner can conduct fishing operations in any part of the Sea Coast, other than the area that was allotted to the Ports Department. These are the stands taken in the additional counter affidavit filed by the 1st and 3rd respondents. A representation, dated 31.08.2009 made by the writ petitioners and other similarly persons had also been placed before this Court. No doubt, it is true that the Director of Ports was not impleaded as a party and certain submissions had been made in this regard. On perusal of the material available on record, taking into consideration the nature of averments made in the affidavit filed in support of the writ petition and the respective stands taken in the counter affidavits and the additional counter affidavit, this Court is of the considered opinion that it would be just and proper for the 1st respondent to look into the grievance of the petitioners in proper perspective. In the light of the same, as the writ petitioners and also similarly placed persons had already made a representation, dated 31.08.2009 to the 1st respondent, let the 1st respondent consider the said representation, in accordance with law, and take an appropriate decision in this regard, within a period of eight weeks from the date of receipt of a copy of this order. The Writ Petition is disposed of accordingly. There shall be no order as to costs. _________________ P. S. NARAYANA, J 14th October 2009 KH