IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY EIGHTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 1650 of 1998 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated in NO : OF on the file of the High Court.) Between: ..... APPELLANT AND .....RESPONDENT Counsel for the Appellant:MR.M.V.DURGA PRASAD Counsel for the Respondent No.: GP FOR FORESTS WRIT PETITION NO : 29274 of 1997 Between: ..... PETITIONER AND .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to Counsel for the Petitioner:MR.M.RAVINDRANATH REDDY Counsel for the Respondent No.: GP FOR FORESTS WRIT PETITION NO : 19611 of 1996 Between: ..... PETITIONER AND .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to Counsel for the Petitioner:MR.M.RAVINDRANATH REDDY Counsel for the Respondent No.: GP FOR FORESTS The Court made the following : THE HON’BLE SMT JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1650 OF 1998 AND WRIT PETITION NOS.29274 OF 1997 & 19611 OF 1996 COMMON ORDER: (Per SK,J) These three cases raise connected issues for consideration. Hence, this common order. Writ Appeal No.1650 of 1998 is filed by the unsuccessful petitioner in Writ Petition No.22576 of 1996 aggrieved by the order dated 06.02.1998 passed by the learned single Judge dismissing the writ petition. The case of the appellant before the learned single Judge was as follows: He is the owner of an extent of 43.12 acres in Survey No.881/1, Duggarajapatnam Village, Vakadu Mandal, Nellore District and the said land is totally barren and unfit for agricultural purposes. According to him, these lands are fit only for prawn culture because of their proximity to the coast and the Buckingham Canal. He claimed to have made huge investments for developing the said land for prawn culture and commenced operations in October, 1993. It is stated that Duggarajapatnam Village has about 3,000 hectares within its jurisdiction and that Buckingham Canal passes through it. According to the appellant, this canal is not used as an irrigation canal as it’s waters are saline by the time it reaches Duggarajapatnam, owing to its proximity to the sea. Such waters are said to be useful only for prawn culture. Several averments were made in support of the appellant’s stand that prawn culture operations do not contribute to pollution of the soil or water. While so, the Government of Andhra Pradesh notified Pulicat Lake as a Bird Sanctuary under Section 18 of the Wild Life (Protection) Act, 1972 (for brevity, ‘the Act of 1972’) vide G.O.Ms.No.863, Forest and Rural Development (For-III), dated 20.09.1976. It is stated that Duggarajapatnam is not one of the villages mentioned in the said notification. In spite of the same, one Sri K.V.Subramanyam, Divisional Forest Officer, published a pamphlet listing additional villages apart from those mentioned in G.O.Ms.No.863 dated 20.09.1976 and Duggarajapatnam is one of the six villages included in the said pamphlet. The appellant asserted that Duggarajapatnam Village was situated in the north eastern part of Vakadu Mandal which was part of the erstwhile Vakadu Taluk whereas Pulicat was situated in Sullurpet and Tada Mandals of the erstwhile Sullurpet Taluk. The appellant set out various grounds of attack challenging the validity of Section 18 of the Act of 1972 in exercise of which G.O.Ms.No.863 dated 20.09.1976 was issued notifying the Bird Sanctuary. In the alternative, the appellant submitted that even if the said Section was valid, the exercise of power thereunder vide the aforestated G.O. was in gross violation of the principles of natural justice and was illegal and contrary to law. The appellant asserted that no prior exercise was undertaken by the Government before the issuance of the notification and no opportunity was given to those affected to file their objections. It is stated that the boundaries fixed by the State as reflected in the G.O. showed that the same was done indiscriminately and without reference to the topographical situation. With reference to the primary ground of attack that Duggarajapatnam Village was not included in the notification under Section 18 of the Act of 1972 vide G.O.Ms.No.863 dated 20.09.1976, the appellant asserted that the effect of the said G.O. was never felt or extended to Duggarajapatnam Village. Even the enquiry undertaken by the District Collector, Nellore District, to determine the rights under Sections 19, 21 and 22 of the Act of 1972 was not extended to cover Duggarajapatnam Village. The said G.O. was not even communicated to any of the authorities in Vakadu Mandal area. Accordingly, the appellant sought a declaration in the writ petition that Section 18 of the Act of 1972 was null, void and unconstitutional and that G.O.Ms.No.863 dated 20.09.1976 issued thereunder was also illegal and unconstitutional and contrary to law. He sought a further declaration that he was entitled to carry on prawn culture operations in his lands and prayed for a direction interdicting the respondents from interfering with such activity. The Divisional Forest Officer, Nellore District, filed a counter in the writ petition and averred that pursuant to G.O.Ms.No.863 dated 20.09.1976, the District Collector, Nellore District, had issued proceedings under the provisions of Sections 19 and 21 of the Act of 1972 determining the rights of the people living in the notified Bird Sanctuary. The said proclamation is contained in Rc.No.7385/89 dated 30.05.1990. Reference is made to the Convention between India and Union of Soviet Socialist Republics (USSR) on the protection of migratory birds and their habitat, in support of the statement that Pulicat Lake being the habitat of such migratory birds required to be protected. Reference is also made to various proceedings of the Government of India in this regard, declaring Pulicat Bird Sanctuary as a protected area. It is stated that the Government of India issued notification in S.O.944(E) dated 15.12.1990 under the provisions of the Environment (Protection) Act, 1986 (for brevity, ‘the Act of 1986’) notifying the Coastal Regulatory Zone and Pulicat Bird Sanctuary was placed under Category-I (CRZ-I) specifying the prohibited activities in such Zone. It is stated that prawn culture operations undertaken by the appellant fall within the prohibited activities in the Coastal Regulatory Zone. The averments made by the appellant with regard to the continuance of prawn culture operations and the non-polluting effect of such operations were denied. It is stated that as per the notification under Section 18 of the Act of 1972 contained in G.O.Ms.No.863 dated 20.09.1976, the boundary of the Sanctuary on the northern side starts from Yellur Village and proceeds parallel to the maximum flood level of the Lake at a distance of 100 meters from it towards the east touching the Village limits of Palemparthi and Konduru and joins Bay of Bengal. The said notification was issued basing on the water spread area shown in the Survey of India Map. As regards the Buckingham Canal, it is stated that in Pulicat Bird Sanctuary area, Royyalakalva joins the said canal at Duggarajapatnam. The authority also denied the contention of the appellant that the boundaries of the Sanctuary were fixed indiscriminately and without reference to the topographical situation. He further stated that the orders passed under the Act of 1972 were communicated to all the Government Officials in the District and the allegation to the contra made by the appellant was denied. He submitted that there was no illegality in Section 18 of the Act of 1972 on the ground of excessive delegation and accordingly prayed for dismissal of the writ petition. The appellant filed his reply to the above counter reiterating that Duggarajapatnam Village was not mentioned in G.O.Ms.No.863 dated 20.09.1976 and that the proceedings in Rc.No.7385 dated 30.05.1990 of the District Collector, Nellore District, which were passed pursuant thereto, do not reflect that he had visited Duggarajapatnam Village or made enquiries there. The appellant asserted that Section 18 of the Act of 1972 required that the name of every town and village comprised in the Sanctuary should be disclosed and that there can be no uncertainty in this regard. He further asserted that his lands were not situated within the maximum flood level of the Lake, much less 100 meters thereof, as Duggarajapatnam was at a distance of 27 Kilometers from the Lake. Raising various other issues on factual aspects, the appellant refuted the stand taken by the authority in his counter. The above writ petition was dismissed by the learned single Judge by order dated 06.02.1998. The learned Judge took note of the averment that the prawn culture operations of the appellant were barred, as his lands fall within the Coastal Regulatory Zone and as the appellant was drawing and discharging water from and into the Pulicat Lake which had been declared by the Government of India as a Bird Sanctuary. Following the Judgments of the Supreme Court in S.JAGANNATH v. UNION OF INDIA[1] and TARUN BHARAT SANGH, ALWAR v. UNION OF INDIA[2], the learned Judge opined that the relief prayed for in the writ petition could not be granted. Stating so, the learned Judge dismissed the writ petition. Hence, Writ Appeal No.1650 of 1998. The Divisional Forest Officer, Sullurpet, Nellore District, filed his counter affidavit in this writ appeal, again referring to the Convention between the Indian and Russian Governments on the issue of protecting migratory birds and their habitats and stated that Pulicat Bird Sanctuary was an important migratory bird habitat in India and it required to be protected. It is stated that the Sanctuary attracts about 15,000 to 20,000 flamingos and other aquatic birds such as pelicans, painted storks, etc. and was also home to various animal species. The authority further stated that Duggarajapatnam is situated within 500 meters from the Pulicat Bird Sanctuary boundary line. The village comes under the Coastal Regulatory Zone-I as per the Government of India, Ministry of Environment’s notification dated 18.08.1994. The Officer further stated that the initial notification under Section 18 of the Act of 1972 indicated the description of the boundary as starting from Yellur Village and running in easterly direction at 100 meters of the high tidal line, from thence in northerly direction and joining Palemparthi Village and thence in northerly direction to Konduru Village and joining in the Bay of Bengal. Duggarajapatnam Village is stated to lie between Palemparthi and Konduru Villages. It is further stated that the District Collector, Nellore District, invited the affected villagers to come up with their objections within two months from the date of proclamation and that the District Collector himself visited the villages and enquired into their claims. It is also stated that the concerned Mandal Revenue Officers convened meetings in the villages and entertained objections and claims. Pursuant thereto, the District Collector, Nellore District, vide proceedings in Rc.No.7385/89 dated 30.05.1990 issued proceedings determining the rights of the villagers living within the notified Sanctuary area. The final notification under Section 26-A of the Act of 1972 was issued in the year 1997 and it is asserted that there is no change either in the area of the Sanctuary or it’s boundary description in this notification when compared to the preliminary notification issued in the year 1976. It is however admitted that the final notification, under G.O.Ms.No.96 dated 28.08.1997, is more specific in description though the boundary has not been changed. It is also asserted that there is no aqua culture activity in the areas falling within the Sanctuary. The Officer further stated that the Sanctuary line was passing through Duggarajapatnam Village and hence, the contention that the Village was 70 Kilometers away from the Lake is far from the truth. In Writ Petition No.29274 of 1997, the petitioners challenged the orders of the Government of Andhra Pradesh in G.O.Ms.No.96, Environment, Forests, Science and Technology (For.III) Department, dated 28.08.1997 on the ground that the same are contrary to the provisions of the Act of 1972. The said orders embody the final notification issued by the State of Andhra Pradesh under Section 26-A of the Act of 1972. In the affidavit filed in support of the writ petition, the petitioners stated that Duggarajapatnam was a revenue village with 8 hamlets, namely, (1) Pulinjarivaripalem, (2) Pambali lock, (3) Srinivasapuram mitta, (4) Kothuru, (5) Srinivasapuram, (6) Kakivakkam, (7) Kondurupalem and (8) Uttarapalem. It is stated that Pulicat Lake is at a distance of about 70 Kilometers from Duggarajapatnam and has no connection with Duggarajapatnam or it’s hamlets. The petitioners asserted that there was no creek connecting Duggarajapatnam and it’s hamlets to the Lake. They further stated that Duggarajapatnam and its hamlets have an ayacut of 900 acres of wet land for paddy cultivation and 3000 acres of dry land in which Casuarina, Cashew, Eucalyptus, etc. are raised. The petitioners referred to G.O.Ms.No.863 dated 20.09.1976 issued by the State Government under Section 18 of the Act of 1972 and pointed out that Duggarajapatnam Revenue Village and it’s hamlets were not mentioned in the same. They also referred to the proclamation of the District Collector, Nellore District, in Rc.No.D5/7385/89 dated 19.02.1990 issued under Section 21 of the Act of 1972 for the purpose of determining the rights of persons living in the notified villages which were included in Pulicat Bird Sanctuary. It is stated that pursuant thereto the Mandal Revenue Officer, Vakadu, visited the hamlets of Reddipalem Bit-I and Reddipalem Bit-II Villages in Vakadu Mandal on 05.04.1990, 06.04.1990 and 07.04.1990 and the villagers of those villages were permitted to file their objections. Thereupon, the Mandal Revenue Officer, Vakadu, submitted his report dated 08.04.1990 to the District Collector, who then issued the proceedings dated 30.05.1990, determining the rights of such villagers under Section 21 of the Act of 1972. There is no mention of Duggarajapatnam Village in any of the above proceedings. While so, the Government issued the impugned G.O.Ms.No.96 dated 28.08.1997 under Section 26-A of the Act of 1972 and the petitioners found to their surprise that Duggarajapatnam Village and it’s hamlets were shown to be included in the Sanctuary. The said final notification of the Sanctuary is stated to have far reaching civil consequences for the residents of Dugarajapatnam Village and it’s hamlets and accordingly the petitioners approached this Court by way of this writ petition. It is their grievance that they were not put on notice prior to the final notification under Section 26-A of the Act of 1972 and their objections were not called for or considered which is in utter violation of the procedure prescribed under the Act of 1972. Basing on this final notification, it is stated that the Divisional Forest Officer, Nellore District, and his subordinates were interfering with the activities of the petitioners over their patta lands, causing them serious inconvenience and hardship. Hence, they prayed for a declaration that the final notification under Section 26-A of the Act of 1972 embodied in G.O.Ms.No.96 dated 28.08.1997 was illegal. In their counter affidavit, the respondents in the writ petition stated that after the issuance of the preliminary notification under Section 18 of the Act of 1972 vide G.O.Ms.No.863 dated 20.09.1976, it was later noticed that all the villages which were falling either inside the Pulicat Bird Sanctuary or along it’s boundary were not mentioned in the said notification in complete shape. However, as these villages were not mentioned in the notification, the occupants of such villages were violating the provisions of the Act of 1972 thereby bringing severe pressure on the eco-system of the Bird Sanctuary. It is specifically stated that ‘therefore it has become necessary to add an amendment to the said notification giving an exhaustive list of villages that are falling within the Pulicat Bird Sanctuary or falling along the boundary of the Pulicat Bird Sanctuary so as to safeguard it’. This, according to the respondents, was the reason why the impugned G.O. was issued under Section 26-A of the Act of 1972 with the details of the boundary description but the rights were already determined by the District Collector, Nellore District. The respondents further reiterated that G.O.No.96 dated 28.08.1997 was only an amendment to the original notification with a detailed and elaborate list of villages which either fall within the Bird Sanctuary or along it’s boundary. They admitted that Duggarajapatnam was a revenue village situated at about 70 Kilometers from Pulicat Lake and that the lands therein were used for cultivation of wet and dry crops. They, however, denied that there were no creek connection between Duggarajapatnam and Pulicat Lake. It is stated that about 70 Kilometers north of Pulicat and on the east of Buckingham Cannal there is a wide shallow opening into the sea near Duggarajapatnam which remains open during the major part of the year. Due to the steep gradient from the south, the effect of this mouth is not felt much in the canal and connected water bodies. But, during the north east monsoon all the shallow areas in the north get inundated and become a single sheet of water contiguous with the southern parts of the Lake and canal. Thus, one of the openings of the Lake into the sea is at Duggarajapatnam. The respondents admitted that some of the villages which fall within the Sanctuary or along it’s boundary were not mentioned in the earlier notification vide G.O.Ms.No.863 dated 20.09.1976 and Duggarajapatnam was one such village. It is however stated that the original boundary was not at all changed. With regard to the contention of the petitioners that the villagers of Duggarajapatnam were not taken into confidence and only the villagers of Reddipalem Bit-I and Reddipalem Bit-II in Vakadu Mandal were asked to submit their objections, the respondents stated that pursuant to the proclamation of the District Collector, Nellore District, nothing prevented the villagers of Duggarajapatnam from filing their objections before the Mandal Revenue Officer. It is asserted that the final notification under the impugned G.O. was in conformity with the earlier notification and it is only because of the non-mentioning of all the villages that fell within the Sanctuary or along it’s boundary that the amended notification with an exhaustive list of villages was issued so as to avoid ambiguity amongst the public. With regard to the delay in the issuance of the final notification, the respondents stated that owing to the non-mentioning of some of the villages in the preliminary notification, the villagers of such villages resorted to activities which posed a major threat to the habitat and ecology of the Sanctuary. Accordingly, a resurvey was done and a detailed list of villages that fall within the Sanctuary and along it’s boundary was drawn up and consequently the amended notification was issued. The respondent therefore asserted that there was no violation of the statutory procedure prescribed in the Act of 1972 warranting interference with the impugned notification vide G.O.Ms.No.96 dated 28.08.1997 and accordingly prayed for dismissal of the writ petition. In their reply to the above counter, the petitioners stated that the notification vide G.O.Ms.No.863 dated 20.09.1976 was unambiguous and clearly reflected that the competent authority never intended to notify Duggarajapatnam or it’s hamlets as part of the Sanctuary. This, according to the petitioners, is demonstrated by the fact that the District Collector, Nellore District, issued the proclamation dated 19.02.1990 in strict accordance with the said notification and directed the Mandal Revenue Officer to convene a meeting only in the villages mentioned and to call for their objections against the proclamation. It is stated that thereupon, the Mandal Revenue Officer convened Grama Sabhas on 05.04.1990, 06.04.1990 and 07.04.1990 in the villages and the hamlets mentioned in the notification and the proclamation. Thereupon, the Mandal Revenue Officer submitted his report dated 08.04.1990 to the District Collector, Nellore District. The petitioner asserted that none of the above records reflect that any deliberations were held in Duggarajapatnam Village or it’s hamlets. Only the villages of Reddipalem Bit-I and Reddipalem Bit-II of Vakadu Mandal were taken into confidence as they alone were intended to be included in the Sanctuary. The petitioners further asserted that the respondents had no authority to amend or alter the boundary of the Sanctuary once it was notified. They also denied the contention of the respondents that the original boundary fixed in the preliminary notification was not at all changed. According to them, the northern boundary as mentioned in the original notification has undergone a sea change in the final notification under G.O.Ms.No.96 dated 28.08.1997. They further reiterated that the final notification includes villages and areas which are not found in the preliminary notification under G.O.Ms.No.863 dated 20.09.1976. It is stated that except the State Legislature, no other authority is entitled to issue a revised notification. In Writ Petition No.19611 of 1996, the petitioners sought a declaration that the respondents therein had no authority in law to interfere with the prawn culture activity being carried out by them in the lands admeasuring Ac.36.09 cents in Survey Nos.219, 615, 616, 895 and 906 of the Duggarajapatnam Village of Vakadu Mandal, Nellore District and sought a direction to restrain the respondents from doing so. The petitioners claim to be the owners of various extents of waste lands in Duggarajapatnam Village of Vakadu Mandal which are not fit for cultivation, as they are saline. The total extent of their holding is said to be about Ac.36.09 cents and the said lands abut Buckingham Cannal on the eastern side. According to the petitioners, these lands are suitable for prawn culture as the required saline water is available in the Buckingham Canal. Accordingly, they took up such activity by converting the lands into ponds of one hectare each, by raising bunds. It is stated that they have made substantial financial investments in this regard. Details have been set out with regard to the activity of prawn culture farming and it is asserted that such activity does not result in any adverse effect upon the Pulicat Bird Sanctuary. While so, the Forest Range Officer, Nellore District, is said to have issued notices to the petitioners informing them that their activity was prohibited under the Act of 1972 and the Coastal Regulatory Zone Rules. According to the petitioners, they explained to the said Officer that they were permanent residents of Duggarajapatnam Village and that their activity was not prohibited under the Act of 1972. However, the authorities continued to interfere with the prawn culture operations of the petitioners. The petitioners stated that none of their activities violate the provisions of the Act of 1972 and thus, the authorities under the said Act could not interfere with such activities. Accordingly, they sought for a declaration to that effect and a direction to restrain them from taking any such action. In his counter, the Divisional Forest Officer, Sullurpet, Nellore District, referred to the preliminary notification under Section 18 of the Act of 1972 vide G.O.Ms.No.863 dated 20.09.1976 and the proceedings initiated pursuant thereto. It is stated that the activities of the petitioners within the Bird Sanctuary area for the purpose of prawn cultivation were illegal and unauthorized being prohibited by the provisions of the Act of 1972. It is further stated that the authorities under the Act of 1972 are empowered to take action against the petitioners as and when they indulge in such activities within the Sanctuary area and accordingly, the petitioners could not seek a declaration that the authorities should not act as per law. These, then, are the foundational pleadings underlying the three cases. Heard the learned counsel appearing for the appellants/petitioners and the learned Government Pleader for Forests for the respondents. The learned Government Pleader also produced the original records for the perusal of this Court. At the outset, we would like to make it clear that what is under challenge before this Court in these three cases is the action initiated under the provisions of the Act of 1972 alone and neither