THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE N. RAVI SHANKAR WRIT APPEAL No.550/2010 and WP Nos.17991, 13215, 16066,11528, 13266 and 14274 of 2010 Date of Order: 29 -04-2011 WA No.550/2010: Between: 1. Pulavarthy Ankaraju and others ..Appellants And 1. The Special Chief Secretary to Government, Animal Husbandry, Dairy Development & Fisheries, Government of Andhra Pradsh, Hyderabad. ..Respondents The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE N. RAVI SHANKAR WRIT APPEAL No.550/2010 and WP Nos.17991, 13215, 16066,11528, 13266 and 14274 of 2010 COMMON JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. In these batch of cases, the question that arises for consideration is the validity of the Government orders issued in converting the agricultural land into fish tanks qua interference with the aquaculture undertaken by the ryots. Hence, they are heard together and disposed of by this common judgment. 2. (a) WA No.550/20110 is filed aggrieved by the orders of the learned single Judge dt.12-7-2010 dismissing WP No.9326/2010 filed seeking a writ of Mandamus declaring the action of the respondents 2 to 5 in granting licences to dig fish tanks in an extent of Ac.239-25 cents comprising in various survey numbers of Gogunta and Vasanthawada villages, Pedapadu Mandal, West Godavari District, as illegal and arbitrary and contrary to G.O.Ms.No.83, Animal Husbandry, Dairy Development & Fisheries (F.II) Department, dt. 12-9-2007 and G.O.Ms.No.18, Animal Husbandry, Dairy Development & Fisheries (F.II) Department, dt. 26- 3-2008 and consequently cancel the licenses issued to the respondents 6 to 20. (b) WP No.17991/2010 is filed challenging G.O.Ms.No.24, dated 9.4.2010, regularizing and permitting setting up of aquaculture units in fresh water lands in the State of Andhra Pradesh in violation of the provisions of Environment (Protection) Act, 1986 and consequently cancel the permissions granted under the said government order including that of the 6th respondent. © WP No.13215/2010 is filed questioning the permission granted by the 2nd respondent dated 22.2.2010 in favour of 10th and 11th respondents for digging tanks in an extent of Ac.5.87 cents covered by Sy.Nos.200/1, 200/2 and 201 of Vennanapudi Village, Nandiwada Mandal, Krishna District, as arbitrary, illegal, and void, and contrary to the provisions of A.P State Aquaculture Seeds Quality Control Act, 2006, and Environment (Protection) Act, 1986, G.O.Ms.No.83, dated 12.9.2007 and various G.Os. issued by the Government from time to time and consequently set aside the same. (d) W.P.No.16066/2010 is filed questioning the action on the part of the respondents 1 to 3 in not preventing the other respondents from excavating fish tanks in the lands covered by Sy.Nos.1289, 1290, 1293, 1299, 1300 etc. adjoining Scheduled Castes and Scheduled Tribes Colony of Veerammakunta Village, Pedapadu Mandal, West Godavari District as illegal, irregular and in violation of G.O.Ms.No.24, dated 9.4.2010 issued by the first respondent under provisions of Water (Prevention and Control of Pollution) Act, 1974 and consequently direct the respondents 1 to 3 to prevent respondents 4 to 7 from excavating fish tanks. (e) W.P.No.11528/2010 is filed by the farmers questioning the Order No.1800/A3/2007, dated 11.5.2010 issued by 2nd respondent as illegal, arbitrary and unconstitutional and set aside the same and consequently direct the respondents not to interfere in any manner with the work of digging of fish tanks by the petitioners in respect of the lands owned by them. (f) W.P.No.13266/2010 is filed questioning the action of the respondents in interfering with the petitioners’ possession, enjoyment and conversion of their lands to an extent of Ac.27.01 cents in various survey numbers, situated at Gannavaram Village, Mandavalli Mandal as illegal, arbitrary and contrary to G.O.Ms.No.83, dated 12.9.2007 and G.O.Ms.No.18, dated 26.3.2008 and for consequential direction that the petitioners have deemed permission for converting their lands into fish tanks. (g) WP No.14274/2010 is filed to declare the action of the respondents in interfering with the petitioner’s possession and enjoyment of the land situated at Veerammakunta village, Pedapadu Mandal, West Godavari District as illegal, arbitrary and contrary to G.O.Ms.No.83, dt. 12-9-2007 r/w G.O.Ms.No.18 dt. 26-3-2008 and consequential declaration that they have deemed permission pursuant to the application dt. 31-3-2009 for converting his land into fish tanks. 3. Before elaborating the pleas taken by the appellants as well as the petitioners and also the respondents, it is necessary to notice the guidelines issued by the Government of Andhra Pradesh from time to time and the relevant statutes which govern conversion of agricultural land into non-agricultural purpose/fish tanks etc., 4 (a). The Government of Andhra Pradesh by G.O.Ms.No.83 dt. 12-9-2007 issued guidelines in the light of the directions issued by this court in WP No.2180/2001 and batch dt. 26-7-2001 (reported at 2002 (3) ALT 57 (DB) as MADIREDDY PADMA RAMBABU V. DISTRICT FOREST OFFICER) constituting District Level Committee for regularizing the existing freshwater aquaculture and for also according permission for seeking setting up of new fresh water aquaculture units in the state, with the following members: Sl.No. Composition of District Level Committee Status 1 District Collector Chairperson 2 Joint Collector Member 3 Executive Engineer, Major Irrigation Department Member 4 Deputy Director, Ground Water Department Member 5 Joint Director of Agriculture Member 6 Conservator of Forests Member 7 District Fisheries Officer Member-Convener 4(b) By G.O.Ms.No.18 dt. 26-3-2008, while deleting guidelines at S.Nos.3,6 and 7 appended to G.O.Ms.No.83 dt. 12-9- 2007, the Government added five more guidelines, namely, (I) For regularization of the exiting freshwater aquaculture extending time limit for regularization for three more months upto 31-5-2008; (II) Issue of licences to existing aquaculture ponds which were recorded in revenue records as culture pond; (III) Licenses for setting up new farms; (IV) Repairs to the Aquaculture Ponds; and (V) Liberalised processing of applications received from predominantly aquaculture villages. In the guideline No.III, it was stated “if no communication is received from the authorities within two months from the date of filing of application, the applicant can go ahead with construction of new pond and the license is deemed to be issued.” 4 © By G.O.Ms.No.9, Animal Husbandry, Dairy Development & Fisheries (F.II) Department dt. 10-2-2010, the Government of Andhra Pradesh extended the time limit for regularization of existing fresh water aquaculture units in the State upto 30-4-2010 subject to the condition that the farmer be permitted to file applications before 28-2- 2010 by paying processing fee at the existing rate of RS.200/- per acre and between 1-3-2010 and 30-4-2010, the farmer be permitted to file application by paying penalty at Rs.500/- per acre in addition to the existing rate of Rs.200/- per acre towards processing fee. 4(d). By G.O.Ms.No.24, Animal Husbandry, Dairy Development & Fisheries (F.II) Department, dt. 9-4-2010, the Government of Andhra Pradesh, in supercession of G.O.Ms.No.83 dt. 12-9-2007, G.O.Ms.No.18 dt. 26-3-2008, G.O.Ms.No.43 dt. 31-7-2009 and G.O.Ms.No.9 dt. 10-2-2010, issued instructions and guidelines to consider the cases for regularization of existing unregistered fresh water aquaculture units and also for starting new units, constituting District Level Committee with the following members: Sl.No. Composition of District Level Committee Status 1 District Collector Chairperson 2 Executive Engineer, Major Irrigation Department Member 3 Deputy Director, Ground Water Department Member 4 Joint Director of Agriculture Member 5 District Fisheries Officer Member-Convener 6 Eminent Aqua Farmer Member 7 Eminent Agriculture Farmer Member 8 Eminent Environmentalist Member The guidelines, which are necessary for disposal of the cases on hand, are extracted hereunder: 1. x x x 2. 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. 3. No fresh water aquaculture farm shall be permitted using water drawn from bore wells except for supplementing the evaporation/seepage of water in the pond during culture period. 4. If the aqua farm causes seepage problems to neighbouring agriculture land, to avoid the same, seepage channel shall be constructed and maintained between the aqua farm and the agriculture land by the owner f the aquaculture farm. 5. x x x x 6. Fish/Prawn species as permitted in the A.P. State Aquaculture Seed (Quality Control) Act, 2006, shall only be permitted for culture. 7. x x x x 8. x x x x x 9. If any registered fresh water aquaculture farmer violates the conditions laid down in the Government orders issued from time to time, the District Collector concerned reserves the right to cancel the registration. 10.to 17: x x x x 4(e). By G.O.Ms.No.47 Animal Husbandry, Dairy Development & Fisheries (F.II) Department dt. 24-6-2010, the Government of Andhra Pradesh constituted the State Level Committee with the following members for consideration of applications received from the District Level Committees and accord permissions for setting up of new fresh water aquaculture units in the State: Sl.No. Composition of the State Level Committee Status 1 S p e c i a l Chief Secretary to Government, AHDD&F Department Chairman 2 S p e c i a l Chief Secretary to Government, Environment, Forest, Science & Technology Department or his nominee not less than the level of Joint Secretary to Government Member 3 S p e c i a l Chief Secretary to Government, of Agriculture Department or his nominee not less than the level of Joint Secretary to Government Member 4 Principal Secretary to Government., Revenue Department or his nominee not less than the level of Joint Secretary to Government Member 5 Direct, Ground Water Department Member 6 E n g i n e e r - i n - C h i e f , Irrigation Department Member 7 Commissioner of Fisheries Member-Convener 4(f). A.P. Agricultural Land (Conversion for Non-Agricultural purposes) Act, 2006 (for short “the Conversion Act”) was enacted to regulate the conversion of agricultural land to non-agricultural purposes and for matters connected therewith or incidental thereto and to repeal the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963. Under section 2(a) of the Conversion Act, “agriculture” has been defined, which means (i) the raising of any crop or garden produce; or (ii) the raising of orchards; or (iii) the raising of pasture; or (iv) hay-ricks. “Agriculture lands” under section 2(b) means lands used for agriculture. Section 3 provides land use conversion, which reads as under: (1) No agricultural land in the State shall be put to non-agricultural purpose, without the prior permission of the Competent authority. (2) An application for such conversion of the agricultural land for non- agricultural purposes shall be made before the competent authority in the form prescribed along with conversion fee as specified under Section 4. (3) to (5) x x x x (6) The conversion permission requested for shall either be issued, rejected in full or part by the competent authority within sixty days after such request is received in the office of the competent authority or within thirty days after the receipt of the deficit amount as the case may be, provided that such requests are rejected, the reasons for such rejection shall be recorded in writing and communicated to the applicant. Provided that, if no order is passed on such request, within the time prescribed in sub-section (6), the required permission shall be deemed to have been given. Section 4 confers powers on the authority to levy and collect conversion fee for non-agricultural purposes, at the rate of 10% of the basic value of the land in areas as may be notified by the Government from time to time. Under Section 4, the authority competent to convert agricultural land for non-agricultural purposes is the Revenue Divisional Officer or any officer to be notified by the Government in that behalf in respect of the lands situated within his territorial jurisdiction for conversion of land use from agricultural purpose to non-agricultural purpose. If any agricultural land has been put to non-agricultural purpose without obtaining the permission as required under Section 3, the competent authority shall impose a fine of 50% over and above the conversion fee for the said land specified under section in such manner as may be prescribed under section 6 of the Conversion Act. Section 9 gives over-riding effect to the provisions of the Conversion Act. 4(g) “Coastal aquaculture” under section 2 (c ) of the Coastal Aquaculture Authority Act, 2005 (for short “Coastal Aquaculture Act”), means culturing, under controlled conditions in ponds, pens, enclosures or otherwise, in coastal areas, of shrimp, prawn, fish or any other aquatic life in saline or brackish water; but does not include fresh water aquaculture. 4(h). “Environment” “environmental pollutant” and “environmental pollution” have been defined under Section 2(a), 2(b) and 2(c) of the Environment (Protection) Act, 1986 (for short “the Environment Act”) respectively, which read as under: 2(a) “environment” includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property; 2(b) “environmental pollutant” means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment; 2(c) “environmental pollution” means the presence in the environment of any environmental pollutant. Chapter II provides for the general powers of the Central Government. Section 3 which provides for the power of Central Government to take measures to protect and improve environment, read as under: “Power of Central Government to take measures to protect and improve environment.— (1) Subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. (2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:— (i) co-ordination of actions by the State Governments, officers and other authorities— (a) under this Act, or the rules made thereunder; or (b) under any other law for the time being in force which is relatable to the objects of this Act; (ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution; (iii) laying down standards for the quality of environment in its various aspects; (iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever: Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources; (v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards; (vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents; (vii) laying down procedures and safeguards for the handling of hazardous substances; (viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution; (ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution; (x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution; (xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act; (xii) collection and dissemination of information in respect of matters relating to environmental pollution; (xiii) preparation of manuals, codes or guides relating to the prevention control and abatement of environmental pollution; (xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act. Rule 5 of the Environment (Protection) Rules, 1986 framed under the Environment Act, prohibits and places restriction on the location of industries and the carrying on process and operations in different area, including environmentally compatible land use. 5 (a). It is necessary to state in brief the facts and pleas of each of the cases now before us. WA No.550/2010: The writ appellants who own different extents of double crop wet lands in Vasanthawada and Gogunta village, Pedapadu Mandal filed WP No.9326/2010. According to the writ petitioners, respondents 6 to 20 own Ac. 239-29 cents in different survey numbers and their lands are towards upper side of petitioners lands. They made applications for conversion of their agricultural lands into fish tanks. On coming to know that the respondents 6 to 20 filed applications seeking permission for conversion, the petitioners made a representation to the third respondent on 10-8-2009. The said application appears to have been forwarded to the fourth respondent, who in turn issued proceedings dt. 16-9-2009 informing the third respondent and directed the fifth respondent to conduct a detailed ground level survey while granting permission to dig the fish tanks. In spite of the same, the fifth respondent has not acted as per the request made by the third respondent. In the meanwhile, permission was granted by the authorities on 30-1-2010 to respondents 6 to 20 for conversion of their agricultural lands into fish tanks. Therefore, the permission so granted to the respondents 6 to 20 to dig fish tanks is contrary to the guidelines issued by the Government from time to time and also contrary to the orders passed by this Court in MADIREDDY PADMA RAMBABU V. DISTRICT FOREST OFFICER[1]. The respondents 1 to 4 filed a counter-affidavit along with WVMP No.2172/2010, and whereas respondents 6 to 20 filed the counter-affidavit along with WVMP No.1904/2010 for vacating the interim order dt.23-4-2010 passed in WPMP No.12039/2010. Respondents 1 to 4 in their counter–affidavit stated that applications filed by the respondents 6 to 20 have been considered by the District Level Committee as per the guidelines issued in G.O.Ms.No.83 dt.12-9-2007 and also the directions issued by the High Court in WP No.2181/2001 dt. 26-7-2006, on the ground that the lands are less productive, low lying area, and subject to submersion due to water logging. The lands of the petitioners are in Vasanthawada part-II village, whereas the lands of the respondents are in low lying area and regularly subject to submersion. Permission is not at all detrimental to the interests of the petitioners as their lands are on higher level. Respondents 6 to 20 filed a counter-affidavit stating that their lands became unfertile due to conversion of the neighbouring lands into fish tanks and as a result there was no yield being derived form the lands owned by them. The petitioners have not raised any objection while converting the land in and around their land. The first petitioner, who is engaged in the business of paddy commission agent, apprehends that if the lands of the respondents are converted into fish tanks, he would loose his income and instigated the other petitioners to file the writ petition. Not only the petitioners but also the respondents have submitted their complaints before the Prajavani on 15-2-2010, which conducted enquiry into the matter and found that the information furnished by the respondents is true and decided not to interfere with the conversion of their agricultural lands into fish tanks. 5(b). The petitioner in WP No.17991/2010 who owns Ac.0-30 cents in RS No.216/2A of Vasanthavada village, Pedapadu Mandal, West Godavari District complains that respondents 1,4 and 5 granted permissions to ryots to convert their agricultural land into fish ponds in West Godavari District and the seventh respondent is one among such ryots. Even in Pedapadu Mandal itself 100’s of acres of agricultural lands were permitted to be converted into fish tanks and his land is situated at a distance of 100 metres away from the land of the seventh respondent, who obtained permission letter from the respondents 4 and 5 on 30-1-2010 to convert her agricultural land into fish tank. If she is allowed to convert her land into fish land, his land would become uncultivable due to extensive aquaculture activity in neighbouring lands. The first respondent filed a counter-affidavit stating that the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 was issued only for the purpose of collecting assessment/tax for lands used for non-agricultural purposes. The purpose of enacting the Conversion Act is mainly to streamline the collection of conversion fee when the land is converted into non-agricultural purposes. There is no provision in the said Conversion Act to safeguard the interests of the neighbouring farmers and also to protect the environment. The Conversion Act only provides for collection of a one time fee for conversion of agricultural land to non-agricultural purposes. The Conversion Act does not in any way deal with grant of permissions or permits for non-agricultural use. There is no provision specifically regularizing aquaculture. Payment of conversion fee does not grant any right and does not regularize or permit for non-agricultural use. 5©. WP No.13215/2010 is filed by the petitioners, who own, an extent of Ac.0-50 cents in S.No.200/1A5 of Vennanapudi village, Nandiwada Mandal, Krishna District, complaining that they are cultivating their land by drawing water from the ayacut of branch canal of Neharelli coming from Dosapadu main channel. Dosapadu main channel is under the ayacut of Krishna river. Respondents 10 and 11 have been cultivating their agricultural land by raising paddy crops both Sarva and Dalwa crops. They applied to the respondents 2 to 8 for grant of permission for digging of fish tanks in their agricultural land to an extent of Ac.5-87 cents covered by S.Nos.200/1, 200/2 and 201, which is adjacent to the petitioners’ lands. On coming to know of the same, the petitioners made a presentation to the Tahsildar, Nandiwada on 16-4-2010 requesting him not to grant permission to dig fish tanks to the respondents 10 and 11. They also made a representation to the Special Officer, Praja Padham on 4-5-2010 when he visited Vennanapudi village. In spite of the same, the permission has been granted in favour of respondents 10 and 11 on 22-2-2010 for digging fish tanks for a period of five years from 22-2-2010 to 21-2- 2015. But the boundaries were wrongly mentioned in the permission, which clearly shows that the permission granted by the second respondent is without verification and inspection of the land and without giving an opportunity to the petitioners. If the respondents 10 and 11 are permitted to convert their land into fish tanks, the land of the petitioners would become useless and the lands of the petitioners will not be useful for not only raising paddy crops but also dry crops due to seepage as both the lands are separated by a small bund but not by canal. Without taking the consent of the petitioners, granting permission is contrary to the various government orders. 7th respondent filed a counter-affidavit stating that on respondents 10 and 11 applying for grant of licence, the Mandal Revenue Inspector inspected the land and submitted proposals stating that lands of the respondents 10 and 11 are situated in tail end of the irrigation canal and it has become difficult for them to grow paddy and during the inspection by the Mandal Level Committee, no objections were received from any quarter. The Gram Panchayat, Vennanapudi village, Nandiwada Mandal has unanimously resolved the conversion of these low yielding paddy fields into fish tanks in its general body meeting held on 24-11-2009. The lands of the respondents 10 and 11 are low lying and subjected to inundation of flood water, as confirmed by the Mandal Agricultural Officer in his report dt. 13-11-2009 as well as in the joint inspection report of Tahsildar, Nandiwada Mandal, Agricultural Officer, Surveyor, Nandiwada Mandal and Village Revenue Officer, Vennanapudi. The District Level Committee after thoroughly examining all the reports granted permission to respondents 10 and 11. Respondents 10 and 11 filed a separate counter-affidavit stating that due to low lying and due to heavy rains, cyclones, floods causing damage to the crops particularly during the years 2003, 2005, 2006 and 2006, they are forced to apply to the District Collector seeking permission for construction of fish tanks. The Revenue