HIGH COURT OF ORISSA: CUTTACK W.P. (C) No. 18006 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Ambika Primary Fishermen Cooperative Society, represented through its President Sri Dharmananda Kei, aged about 40 years, son of Bauri Bandhu Kei, At: Chandraput, P.S. Balugaon, Dist: Khurda … Petitioner -Versus- State of Orissa & Others … Opp.Parties For Petitioner : M/s. Sukanta Kumar Dalai For Opp. Parties : Government Advocate ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Heard & Disposed of on 21.12.2010 B.N. MAHAPATRA, J. This writ petition has been filed for a direction to O.P. No.1-Secretary to Government, Department of Revenue and Disaster Management, Orissa to recommend the fishery source in favour of the petitioner-Society and further direction to FISHFED to execute agreement in consonance with the order of this Court dated 01.02.2007 in W.P.(C). No. 6536 of 1998 and order dated 23.12.2008 in W.P.(C). No.16156 of 2008 for fishing in Kandokhai Jano in Chilika. The petitioner also prays for a direction to opp. parties to evict unauthorized encroachers from the case land and to protect the members of petitioner- Society from enjoying their livelihood by doing traditional fishing and to revive the Chilika Policy. 2. The petitioner in the present case is a registered Fishermen Cooperative Society, namely, Amibika Primary Fishermen’s Cooperative Society. According to the petitioner, Chilika Lake provides livelihood to many people including the members of the petitioner-Society living in and around Chilika. The Cooperative structure was introduced in the year 1959 with a number of Primary Fishermen Cooperative Societies at the grass-root level and the apex body at the top known as Central Fishermen Cooperative Marketing Society Limited (for short, ‘Central Society’), which is situated at Balugaon in the district of Khurda. The Central Society used to take lease of various fishery sources from the Government through concerned Collector and further sub-leased them to other primary societies. The petitioner-Society is a member Society of the apex body and since 1959 it has been enjoying the ‘Kandakhai Jano’ source on lease basis. The Tahasildars of Puri, Krushna Prasad, Banapur and Khallikote were settling sources which are not taken on lease by the Central Society through open auction. The aforesaid Policy gave rise to a demand by the non-fishermen to lease out some fishery sources in their favour either on the ground that the fishery sources were adjacent to their villages or because of their customary right. The source 2 ‘Kandakhai-Jano’ which was in possession of the petitioner-Society since 1959 was a capture source and the members of the said Society were earning their livelihood by fishing from said source. For the first time, when the culture source was introduced, the status of the said source was changed by the State Government as culture source and the same was not only illegal but also in contravention of the direction of this Court. 3. Mr. Dalai, learned counsel appearing for the petitioner submits that the Supreme Court in the case of S.Jagannath Vs. Union of India & Ors., reported in (1997) 2 SCC 87 has passed certain prohibitory orders in respect of commercial utilization of Chilika water for prawn culture. Thus, any type of culture has been banned in Chilika. Pursuant to order dated 13.03.2005, passed by this Court in O.J.C. No.6536 of 1998 the petitioner-Society approached the Collector, Puri in Fishery Misc. Case No.6/05 for grant of lease of ‘ Kandakhai Jano’ source and at the same time also filed another petition to convert the said source to its original status, i.e., as capture source from culture source which had been converted to culture in the year 1991. The Collector, Puri vide order dated 29.03.2007 has turned down the prayer mainly on two grounds, i.e., (1) the present source is a culture source and corrigendum No.29253/R dated 05.07.1994 issued by the Government in Revenue Department is very specific which clearly defines that any further conversion would be injurious to the interest of the 3 fisherman and the ratio 60:40 of capture and culture sources will strictly be followed; (2) Further it is viewed that the Government in G.O. No.32895/R dated. 18.06.1999 have decided not to lease out any culture fishery in favour of either P.F.C.S. or non-fishermen inhabitants of adjoining Chilika. O.J.C. No.6536 of 1998 was finally disposed of on 01.02.2007 with a direction to the petitioner to approach the Collector, Puri by filing a representation for leasing out the aforesaid source. Direction was also given to the Collector, Puri to consider the said representation within three months of the date of its receipt. Accordingly, petitioner-Society approached the Collector, Puri and filed representations dated 05.04.2007 and 11.04.2007 before the Collector, Puri. During pendency of the representation of the petitioner before the Collector, Puri, the petitioner had approached the State Government and the State Government vide letter No.43010 dated 31.10.2007 (Annexure- 1) had directed the Collector, Puri to consider the representation of the petitioner-Society in consonance with direction of this Court and to lease out an area of 137 acres in favour of the petitioner as capture source and also further directed to send proposal for conversion of balance area of Ac.299.26 decimals from culture source to capture source. Vide letter dated 09.09.2008 (Annexure-2) the Joint Secretary to Government, Revenue and Disaster Management Department, Orissa also requested the Collector, Puri to furnish specific proposal with the justification for conversion of Ac.299.26 decimals of culture sources to capture sources 4 and for settling 137 acres of ‘Kandakhai Jano’ in favour of the petitioner. But instead of furnishing any reply to the Government, the Collector, Puri has rejected the representation of the Ambika P.F.C.S. vide order dated 10.03.2008 in Fishery Misc. Case No. 25 of 2007 on the similar ground taken in Fishery Misc. Case No. 6 of 2005 without any intimation to the Government. Being aggrieved by the dilly dally tactics of the Collector, Puri and the rejection of its representation, the petitioner filed one Contempt Petition before this Court. Although the petitioner has approached different forums to get justice, it failed to get the same from anywhere. The prawn mafias those who are in possession of the case land have approached this Court and the State Government in its counter have stated that till date those prawn mafias are in peaceful possession and are doing prawn culture for which this Court has passed the status quo order. After the Hon’ble Supreme Court’s direction, the prawn culture in Chilika lake has been completely banned and the adjacent villagers who are in possession of the case land and doing illegal prawn culture have absolutely no right to enter inside the Chilika lake. Due to illegal nexus between the Collector, Puri and the prawn mafias, the members of petitioner-Society have lost their source of livelihood. Even though, the petitioner-Society has deposited substantial amount for the purpose of taking lease, till date no action has been taken for leasing out the case land to the petitioner. The Collector, Puri in connivance with the prawn mafias and at the behest of the local political leaders is 5 encouraging prawn culture in the case land which is in violation of the direction of the Hon’ble Supreme Court as well as the Policy formulated by the Government on Chilika. The total survey area of Chilika is 47,000 acres out of which 27,000 acres are known as capture source and are operable. The rest 20,000 acres are culture sources. According to the direction of the Hon’ble Supreme Court, the said area is prohibited from being used for culture purpose. In spite of that no step has been taken by the Government to prevent illegal prawn culture inside the aforesaid area. Being aggrieved by the illegal action of the Government, the petitioner approached this Court in W.P.(C). No.16156 of 2008 and this Court vide order dated 23.12.2008 disposed of the writ petition with a direction to the petitioner to move a representation ventilating its grievance before O.P. No.1-Secretary to Government in Revenue Department, Orissa along with a copy of the writ petition within a period of one week from the date of order which shall be considered and disposed of by a speaking order within a period of one month from the date of filing a copy of that order. While the matter stood thus, the Tahasildar, Krushna Prasad in connivance with local prawn mafias has recommended not to lease out the same anticipating the serious law and order situation. On such recommendation, the Collector, Puri vide letter dated 04.10.2010 (Annexure-5) has recommended the same to FISHFED not to lease out the same in favour of the petitioner for the year 2010-11. After the direction of the Hon’ble Supreme Court only right of fishing 6 inside the Chilika is left for fishermen and prawn culture has been completely banned but taking advantage of 1994 Chilika Policy non- fishermen as well as prawn mafias ignoring the direction of the Hon’ble Supreme Court and in connivance with the district administration are doing prawn culture depriving the poor fishermen of their right of fishing inside Chilika. The only motive of the Collector, Puri and Tahasildar, Krushna Prasad is to delay the matter to enable the prawn mafias to harvest prawn from the scheduled areas. Concluding his argument, Mr. Dalai sought that necessary direction may be given to opp. parties to take immediate steps to lease out the case land to the petitioner-society. 4. The learned Government Advocate referring to the counter affidavit filed by opposite party No.4-Collector, Puri submitted that in pursuance of the direction of this Court in W.P.(C) No.16156 of 2008 and basing upon the representation filed before the Government in Revenue Department, the Government converted the source namely “Kandakhai Jano” from culture source to capture source. The petitioner-society was allotted an area of Ac 181.00 decimals and possession was delivered to the society by the Tahasildar, Krushna Prasad on 14.5.2010 for operation of the said source for the year 2009-10. After handing over possession of the converted capture source “Kandakhai Jano” for the year 2009-10, another writ petition bearing W.P.(C) No.8854 of 2010 was filed by one Duryodhan Palei of village Udayagiri before this Court with a 7 prayer to keep the said Jano as free zone and forcibly possessed the said Jano. From the date of forcible possession by Udayagiri villagers, the said “Kandakhai Jano” has become disputed and thereafter, no further lease has been granted by the District Administration for the year 2010- 11 anticipating law and order situation. Pursuant to the direction of the apex Court in the case of S.Jagannath vs. Union of India (supra), the State Government has taken adequate steps to comply with the directions of the Hon’ble Supreme Court. A comprehensive policy was issued, vide letter No.23240/R dated 23rd May, 1994 (Annexure-C/5), by the erstwhile Revenue and Excise Department. The said Chilika Fishery Policy was subsequently revised vide letter No.29253/R dated 5th July, 1994 (Annexure-D/5) and letter No.52561/R dated 7th December, 1994 (Annexure-E/5) of the erstwhile Revenue & Excise Department. Vide Letter No.32845/R dated 18th June, 1999 (Annexure-F/5) issued by the erstwhile Revenue & Excise Department, the Government completely banned either granting or renewal of lease for fishery culture within the lake area either in favour of any Primary Fishermen Cooperative Society or in favour of groups/societies of non-fishermen inhabitants of the adjoining villages/hamlets for fishery culture. By notification No.33682/ R dated 27th July, 2000 (Annexure-G/5), Government in Revenue Department constituted three District Level Monitoring Committees in the districts of Puri, Khurda and Ganjam to supervise and monitor the 8 functioning of the Task Force at the district level. The Revenue Department, vide letter No.36601/R dated 9th August, 2000 (Annexure- H/5) issued necessary guidelines for constitution and operation of the Task Force. Accordingly, two Task Forces with separate operational units at Satapada and Balugaon for protection of Chilika Lake were constituted. Learned Government Advocate further submitted that the said Task Forces have been assigned the following functions: (i) Enforcement of Orissa Marine Fishery Regulation Act (OMPR Act) by way of prevention of the Poaching of Prawn Juvenile regulating the fishery activities in the restricted areas etc. of Chilika Lake. (ii) Enforcement of Wildlife Protection Act to prevent poaching and trapping of birds in Chilika Lake. (iii) The Task Force shall evict encroachments from the area in accordance with the provisions of the relevant Acts and Rules framed thereunder and maintain constant vigil in the areas to prevent unauthorized fishing and poaching of birds etc., and (iv) Any other functions as assigned to the Task Force from time to time for protection of Chilika Lake. It was also submitted that for regulation of fishery activities in Chilika Lake and management of the aquatic resources of Chilika, 9 Forest and Environment Department has drafted comprehensive guidelines. The said Department is finalizing the draft guidelines in consultation with the Law Department. The prayer of the petitioner in the present writ petition is contrary to the prayer made by the rival group in W.P.(C) No.8854 of 2010. Therefore, learned Government Advocate submitted that the present writ petition is liable to be dismissed. It was further submitted that as per direction of the Hon’ble Supreme Court, the Government in Revenue & Disaster Management Department, Orissa in its letter No.32845 dated 18.06.1999 has instructed the district Administration that no lease shall be granted for fishery culture. It is not at all a fact that the Collector, Puri in connivance with the Prawn Mafias and at the behest of the local political leaders is encouraging prawn culture through mafias. On the other hand, as and when prawn culture in Chilika Lake comes to the knowledge of the Collector, Puri, immediate steps are taken for demolition of un-authorized gheries in Chilika Lake. 5. It goes without saying that the natural beauty of Chilika lake not only attracts lakhs of beauty lovers from inside and outside the country but also provides livelihood to lakhs of people living in and around Chilika. In course of time, many disputes have arisen between the Fishermen and Non-Fishermen with regard to their right to claim for catching fish/prawn from Chilika and to carry on prawn culture. To settle the dispute between them, the State Government framed the 10 Chilika Policy from time to time and many cases are filed before the Administrative Authorities as well as in the Courts including this Court and the Hon’ble Supreme Court. 6. To adjudicate the present grievance of the petitioner-society in the case at hand, it would be profitable to have an idea about some of the judgments/orders passed by this Court and the Hon’ble apex Court. Being aggrieved by the principles of settlement of fishery in Chilika adopted by the Government in its Revenue and Excise Department vide memo dated 31.12.1991, thirty-six primary Fishermen Cooperative Societies approached this Court in O.J.C. Nos. 1653, 5643 and 8433 of 1992 and this Court by order dated 23.11.1993 passed in Kholamuhana Primary Fishermen Cooperative Society and others, etc. v. State of Orissa and others, AIR 1994 Orissa-191, directed the State Government to frame a policy on Chilika. Pursuant to the said direction, the State Government has reframed the Chilika Policy, wherein classification of fisheries was clarified as ‘capture’ and ‘culture’. After formation of revised Chilika Policy the State Government has allotted 137 acres of land from “Kandakhai Jano” source to one Maa Prawn Culture Industry and some other sources to the adjoining villagers. Being aggrieved by the aforesaid direction of the State Government, the petitioner-Society approached this Court in which direction was given to the Collector, Puri for fresh consideration of the case of the petitioner. After careful consideration, the State Government 11 had considered the prayer of the petitioner-Society and allotted the same in favour of the petitioner. 7. Being aggrieved by the aforesaid allotment of the Government, Maa Prawn Culture Industry approached this Court in O.J.C. No.6536 of 1998. This Court passed orders dated 15.03.2005 and 01.02.2007 to the following effect: “Order dt.15.3.05— This application has been filed for a direction to the Collector, Puri to grant lease of sources which are not in dispute before this Court. The learned counsel for the petitioner submits that those sources which are not in dispute may be considered and he has no objection. Accordingly, it is directed that the pendency of the writ petition shall not stand on the way of the Collector, Puri for considering the prayer of the opposite party no.4 for grant of lease in respect of other sources which are not subject matter of dispute in the present writ application in accordance with law. With the aforesaid observation the misc. case was disposed.” “Order dt.1.2.07. Heard learned counsel for the parties. This writ petition has been filed at the instance of Non fisherman prawn culture industry registered under the Industrial Policy of the state government as a Small Scale Industrial unit. It has prayed for quashing of the government decision dated 20.3.98 under Annexure- 20 to the writ petition. By Annexure-20, the Collector, Puri has directed that the society namely, Sri Maa Prawn Culture Industry cannot be allotted any area in Chilika Lake for carrying prawn culture and the compromise made between the petitioner and Ambika Primary Fishermen cooperative society was not accepted.” 8. The Hon’ble apex Court in the case of S.Jagannath (supra), has passed certain prohibitory orders in respect of commercial utilization 12 of Chilika water for prawn culture. The relevant portions of the said judgment are extracted below: “3. The shrimp culture industry/the shrimp ponds are covered by the prohibition contained in para 2(i) of the CRZ Notification. No shrimp culture pond can be constructed or set up within the coastal regulation zone as defined in the CRZ notification. This shall be applicable to all seas, bays, estuaries, creeks, rivers and backwaters. This direction shall not apply to traditional and improved traditional types of technologies (as defined in Alagarswami Report) which are practised in the coastal low lying areas. 4. All acquaculture industries/shrimp culture industries/shrimp culture ponds operating/set up in the coastal regulation zone as defined under the CRZ Notification shall be demolished and removed from the said area before 31-3-1997. We direct the Superintendent of Police/Deputy Commissioner of Police and the District Magistrate/ Collector of the area to enforce this direction and close/demolish all aquaculture industries/ shrimp culture industries, shrimp culture ponds on or before 31.3.1997. A compliance report in this respect shall be filed in this Court by these authorities before 15.04.1997. 5. The farmers who are operating traditional and improved traditional systems of aquaculture may adopt improved technology for increased production, productivity and return with prior approval of the "authority" constituted by this order. 6. The agricultural lands, salt pan lands, mangroves, wet lands, forest lands, land for village common purpose and the land meant for public purposes shall not be used/converted for construction of shrimp culture ponds. 7. No aquaculture industry/shrimp culture industry/shrimp culture ponds shall be constructed/ set up within 1000 meter of Chilka lake and Pulicat lake (including Bird Sanctuaries namely Yadurapattu and Nelapattu). 13 8. Aquaculture industry/shrimp culture industry/ shrimp culture ponds already operating and functioning in the said area of 1000 meter shall be closed and demolished before 31-3-19978. We direct the Superintendent of Police/Deputy Commissioner of Police and the District Magistrate/Collector of the area to enforce this direction and close/demolish all aquaculture industries/shrimp culture industries, shrimp culture ponds on or before 31-3-1997. A compliance report in this respect shall be filled in this Court by these authorities before 15-04- 1997. 9. Aquaculture industry/shrimp culture industry/ shrimp Culture ponds other than traditional and improved traditional may be set up/constructed outside the coastal regulation zone as defined by the CRZ notification and outside 1000 meter of Chilka and Pulicat lakes with the prior approval of the "authority" as constituted by this Court. Such industries which are already operating in the said areas shall obtain authorisation from the "Authority" before 30-04- 1997 failing which the industry concerned shall stop functioning with effect from the said date. We further direct that any aquaculture activity including intensive and semi-intensive which has the effect of causing salinity of soil, or the drinking water or wells and/or by the use of chemical feeds increases shrimp or prawn production with consequent increase in sedimentation which, on putrefaction is a potential health hazard, apart from causing silication turbidity of water courses and estuaries with detrimental implication on local fauna and flora shall not be allowed by the aforesaid Authority. 10. Aquaculture industry/shrimp culture industry/shrimp culture ponds which have been functioning/operating within the coastal regulation zone as defined by the CRZ Notification and within 1000 meter from Chilka and Puliket Lakes shall be liable to compensate the affected persons on the basis of the "polluter pays" principle.” 14 9. Despite the above order of this Court and the apex Court, we failed to understand how the Collector, Puri vide order dated 29.03.2007 has struck down the prayer of the petitioner-society to convert the culture source to capture source on the ground that corrigendum No.29253/R dated 05.07.1994 issued by the Government in Revenue Department are very specific which clearly defines that any further conversion would be injurious to the interest of the fishermen and the ratio 60:40 of capture and culture sources could be strictly followed. The Government in G.O. No.32895/R dated 18.06.1999 decided not to lease out any culture fishery in favour of either P.F.C.S. or non-fishermen inhabitants of adjoining Chilika. However, pursuant to this Court’s order dated 23.12.2008 passed in W.P.(C) No.16156 of 2008, the petitioner’s representation was considered and by letter No.355 dated 08.04.2010 (Annexure-3), the Tahasildar, Krushna Prasad was directed for handing over possession of the case land to the petitioner-society. The Tahasildar, Krushna Prasad on 23.04.2010 issued a notice to the petitioner for taking possession of the culture sources on 30.04.2010 subject to payment of lease value. The possession was given to the petitioner vide letter dated 14.05.2010 (Annexure-4 series) in presence of the local authorities. While the matter stood thus, the Tahasildar, Krushna Prasad recommended the Collector, Puri not to lease out the said sources anticipating serious law and order situation. On such recommendation, the Collector, Puri by letter dated 15 04.10.2010 (Annexure-5) has recommended the same to FISHFED not to lease out the same in favour of the petitioner for the year 2010-11. 10. In the above scenario, the stand of opposite parties in their counter affidavit that after handing over possession to the petitioner to operate the converted capture source “Kandakhai Jano” for the year 2009-10, one Duryadhan Palai of village Udayagiri forcibly possessed the said Jano and right from the said date of forcible possession by Udayagiri villagers the Kandakhai Jano has become disputed, reflects a very sad picture so far as the district Administration is concerned. This is more so when it is stated in paragraph 11 of the counter affidavit that Task Forces were constituted and they shall inter alia evict encroachment from the area in accordance with the provisions of the Act and Rules framed thereunder and maintain constant vigil in the area to prevent unauthorized fishing and poaching of birds etc. 11. In paragraph 13 of the counter affidavit filed by opp. party no. 4 it is stated that as per Chilika Policy framed in the year 1994, the Government has classified the Fishery source in Chilika to be leased out keeping in mind the direction of this Court passed in O.J.C. Nos. 1653, 5643 and 8422 of 1992 and an area of Ac 137.00 of Kandakhai Jano was approved as capture source as per para 104 of the order and as per periphery ground of the source. 12. In paragraph-8 of the said counter affidavit, it is stated that vide letter No.32845/R dated 18th June, 1999 (Annexure-F/5) issued by 16 the Revenue and Excise Department, the Government completely banned grant or renewal of lease for culture fishery