Dismissed

Pesangi Yesu, v. The District Collector

Andhra Pradesh HC2 Feb 2022WP/8879/2020

Case brief

AI extract

What is this about?

This court disposed of a writ petition challenging the digging of fresh water fish tanks by private respondents. The court held that the relevant environmental guidelines were not violated based on the petitioner's lack of specific averments regarding proximity breaches. Consequently, an earlier stay was vacated, and the petition was dismissed.

What did the court decide?

Vacated stay petitions and dismissed the writ petition challenging the digging of aquaculture tanks.

Pesangi Yesu, Vs The District Collector — Environment and Pollution | Andhra Pradesh HC (2022)

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HON’BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI

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I.A.Nos.2 of 2020 and 1 of 2021 in WP No.8879 of 2020

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and Writ Petition No.8879 of 2020

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Order:

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This Writ Petition is filed to declare the inaction of the official respondents in restraining the unofficial respondents from digging the aquaculture tank in RS Nos.26-2F-1 to 26-2F-4, 26-2G, 27-1-2G1 and 2810 which are situated on the northern side of their village called Palli Polavaram, Yenuguvani Lanka Gram Panchayat, Elamanchili Mandal, West Godavari district as arbitrary, illegal and contrary to G.O.Ms.No.16, Animal Husbandry, Dairy Development and Fisheries (Fish) Department, dated 20.04.2018.

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The case of the petitioners is that they are residents of Palli Polavaram hamlet, Yenguvani Lanka Gram Panchayat, Elamanchili mandal, West Godavari district and the unofficial respondents are digging prawn tanks on the northern side of their village by converting Ac.10.00 of coconut grove into prawn tank without any permission whatsoever; they have fresh water pond which is a source of potable water to them and there is a School in their village which is to be closed down if the tank is dug and the official respondents are permitting the unofficial respondents to dig the tank; the Education department and Medical and Health departments were not consulted before digging the tank; the tank is occupying the burial ground and road margin and the slightest increase in the level of water of the tank would flood their village and the petitioners would be deprived of their road; the subject tank is contrary to the provisions of G.O.Ms.No.16, dated 20.04.2018. Hence, the Writ Petition.

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When the Writ Petition came up for admission on 26.05.2020, this Court directed the respondents 1 to 8 to ensure that the respondents 9 to 15 shall not proceed with digging, completing and operating the aquaculture/fish/prawn tank in the subject survey number.

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Counter affidavit is filed by the fourth respondent Gram Panchayat stating, inter alia, that the Fisheries Department has to look into the issue with regard to fish/prawn ponds and that the fourth respondent is unnecessarily impleaded as party respondent to the Writ Petition.

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Counter affidavit along with vacate stay petition in IA No.1 of 2021 is filed by the Assistant Director of Fisheries on behalf of respondents 1 to 8 stating, inter alia, that the unofficial respondents have applied for provisional registration for digging new fresh water fish tanks in their own lands situated in RS Nos.26-2E-1, 2E-2, 2F-2 in an extent of Ac.1.40 cents and RS No.26/2 in an extent of Ac.1.48 cents of Yenuguvanilanka village, Elamanchili Mandal, West Godavari district and the mandal level field officers i.e., Tahsildar, Agriculture Officer, Assistant Executive Engineer, Irrigation Department and Ground Water Department have inspected the subject lands and recommended to the District Level Committee for provisional registration to dig fresh water fish tanks and accordingly provisional registration was granted to the unofficial respondents vide proceedings dated 08.12.2015 and 09.12.2015; after obtaining the said permission, the unofficial respondents started digging fresh water fish tanks and the petitioners obstructed and stopped the said activity and filed the present Writ Petition; after tanks are dug, again the Mandal Level Field Officers i.e., Tahsildar, Agriculture Officer, Assistant Executive Engineer, Irrigation Department and Ground Water Department and other officers will inspect and make a recommendation for final approval, if the

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same is dug in accordance with G.O.Ms.No.7, Animal Husbandry, Dairy Development and Fisheries (Fish.II) Department, dated 16.03.2013 and G.O.Ms.No.15, Animal Husbandry, Dairy Development and Fisheries (Fish) Department, dated 26.05.2015.

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Counter affidavit along with vacate stay petition in IA No.2 of 2020 is also filed by the tenth respondent stating, inter alia, that he and his paternal uncle’s son owned land admeasuring an extent of Ac.0.70 cents each in Survey No.26/2E-1, 2E-2, 2F-2 in the village limits of Yenuguvani Lanka, Yelamanchili mandal of West Godavari district; as the said land is a low lying land and is subjected to inundation due to over flowing of drainage canal on the western and southern sides, they applied for permission for provisional registration and the same was granted; the allegation that the unofficial respondents have occupied the burial ground and road margin is absolutely false; G.O.Ms.No.16 dated 20.04.2018 does not apply as the said GO stipulates guidelines for declaration of aqua zones in the coastal districts and fresh water aqua culture tanks are not governed by the said GO; digging was done strictly in accordance with the permission granted by the district level sanction committee; petitioners have impleaded respondents 12 to 15 who are not having lands on the northern side of the village and prayed to vacate the interim order.

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Heard learned counsel for the petitioners Sri S.R. Sanku, Sri N. Siva Reddy, learned counsel appearing for the unofficial respondents, Sri I. Koti Reddy, learned Standing Counsel appearing for respondent No.4 Gram Panchayat and learned Assistant Government Pleader for Fisheries.

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The main contention of the learned counsel for the petitioners is that the road, school, burial ground and environment will be affected due to digging of tanks by the unofficial respondents. Except making a

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statement that they will be affected, he has not demonstrated before this Court how they would be affected and as seen from the affidavit filed in support of the Writ Petition, the petitioners are residents of Palli Polavaram hamlet, Yenuguvani Lanka Gram Panchayat, but the permission is granted to the unofficial respondent No.10 for the land situated in Yenuguvani Lanka village and in the entire affidavit it is not stated as to whether the petitioners hold any land in the vicinity or in the village. It is also not stated that they are neighbouring land holders of the unofficial respondents. Learned counsel for the petitioners merely relies upon a report in the newspaper wherein it is reported that the Tahsildar would order survey and examine the matter. This Court is not inclined to rely upon such a paper statement, as the same cannot be relied upon. Even though it is alleged in the affidavit filed in support of the Writ Petition that Ac.10.00 of land is converted as fish tank, as seen from the provisional permission, permission is granted only to an extent of Ac.2-10 cents in favour of only two persons. G.O.Ms.No.16 dated 20.04.2018, relied upon by the learned counsel for the petitioners, is issued providing certain guidelines for declaration of aqua zones and for zonation in the coastal districts of the State of Andhra Pradesh, hence that GO does not apply to the facts of the present case. The relevant GO is G.O.Ms.No.7, dated 16.03.2013, wherein certain guidelines are given and on which learned Government Pleader for Fisheries relied upon, are as follows.

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“7.8 fresh water aquaculture farms should be located at least 10 meters from the nearest village.

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7.9 fresh water aquaculture farms should maintain a minimum distance of at least 10 meters from the nearest drinking water source.

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7.10 fresh water aquaculture farms should maintain a minimum distance of at least 10 meters distance from burial ground and places of worship.

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7.11 there shall be a minimum distance of 3 meters between the fresh water aquaculture farm and the road margins.

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7.12 there shall be a minimum distance of 3 meters between the fresh water aquaculture farm and neighbouring agriculture lands.

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7.13 salinization of land and drinking water table etc. should be avoided by providing suitable buffer zones between agriculture lands and aquaculture farms.

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7.14 to prevent the aquaculture farm from causing seepage problem to neighbouring agriculture lands the owner or lessee of the aquaculture farm should construct and maintain a seepage channel between the fresh water aquaculture and neighbouring agriculture lands. Such seepage channel can be created in the prescribed 3-meter gap between the farm and the neighbouring agriculture land. The above guidelines are admitted by the unofficial respondents under G.O.Ms.No.7 dated 16.03.2013. If any violation is there the Government will cancel the issued provisional licenses and not give any final permission to dug out fish tanks for doing fresh water fish culture when they apply for final registrations.”

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As seen from Clause 7.8 fresh water aquaculture farms should be located at least 10 meters from the nearest village and there is no averment in the Writ Petition that they are within the distance of less than 10 meters from the nearest village and Clause 7.9 deals with maintaining a minimum distance of 10 meters from the nearest drinking water source and it is not stated in the affidavit filed in support of the Writ Petition that it is violative of the said condition. It is also not stated in the affidavit

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with regard to violation of Clauses 7.10 to 7.14 of the said GO. Admittedly, petitioners are not neighbouring agricultural land holders for applicability of Clause 7.14. If the unofficial respondents dig the fish ponds contrary to the provisional permission which is granted to them, the official respondents can always take action in accordance with law and if the unofficial respondents violate any of the conditions of the provisional permission, it is always open to the petitioners to point out the same to the authorities concerned. The petitioners also did not challenge the provisional permission granted to the unofficial respondents and they only sought a direction to restrain the unofficial respondents from operating the aquaculture tank. The petitioners could not demonstrate as to which clause of relevant GO is violated by the unofficial respondents in digging the fresh water fish tank.

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In view of the facts and circumstances of the case, vacate stay petition Nos.2 of 2020 and 1 of 2021 are allowed and the interim order granted on 26.05.2020 is vacated and the Writ Petition is also, accordingly, dismissed. There shall be no order as to costs.

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As a sequel thereto, the miscellaneous petitions, if any, pending in

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this Writ Petition shall stand closed.

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_____________________________ KONGARA VIJAYA LAKSHMI, J

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Date:02.02.2022 Nsr

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HON’BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI

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I.A.Nos.2 of 2020 and 1 of 2021 in WP No.8879 of 2020

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and Writ Petition No.8879 of 2020

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Date:02.02.2022

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Nsr

Pesangi Yesu, v. The District Collector

Case brief

What is this about?

What did the court decide?

Pesangi Yesu, v. The District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

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