2001 Supreme(AP) 781

Andhra Pradesh High Court
Judges : S.B.SINHA, V.V.S.RAO
T.Patanjali Sastry, President, environment Centre, Rajahmundry - Appellant
Versus
Chairman, A.P. Pollution Control Board, Hyderabad - Respondent
Decided On : 07-30-01

Headnote:Wild Life Protection Act, 1972 - Sections 18, 21 and 26-A ; Environment (Protection) Act, 1986 - Sections 2(a), 2(b), 2(c), 2(e), 7, 8 & 15 ; Water (Prevention and Control of Pollution) Act, 1974 - Sections 2(J), K and 51-A(g) - Kolleru Wild Life Sanctuary - Constitution of - pollution level in Kolleru lake alarming - Right to have pollution free environment and ecology, now a part of fundamental right - Adequate Steps to be taken for stoppage and regulation of effluents discharged from industries and municipalities into Kolleru lake and strictly adhere to standards laid down by Ministry of Environment.

       Held : Ecology has to be maintained at all costs having regard to the provisions contained in Article 48-A as also article 51-A (g) of the Constitution of India. Right to have pollution free environment and ecology is now part of fundamental right of a citizen guaranteed under Article 21 of the Constitution of India. With a view to maintain the ecology, the Parliament enacted Water Pollution Control Act and environment (Protection) Act. Both the statutes have been enacted with a view to profess the ideologies of maintenance of ecology and ecological balance. From the admitted facts in the present case, it is clear that the pollution level in Kolleru Lake is alarming.

       The Pollution Control Board to see that all such activities leading to the pollution of the kolleru lake and disturbance of ecology of the lake must forthwith be stopped and/or regulated strictly in accordance with law. The State must make all endeavours to bring back Kolleru lake to its pristine glory.

       From the final notification issued in G.O.Ms. No. 120 dated 4-10-1999, it is evident that the right of the local fishermen to do fishing by traditional method by using ordinary boats without using motorboats is not taken away, but aquaculture in the form of any tank has been prohibited. Further, wherever pisciculture existed in private lands, as on the date of notification, fishing in traditional method is permitted without causing environment hazard till the Government acquires such private lands under the provisions of the Wild Life Protection Act. The right to do traditional agriculture without using pesticides and chemicals is also permitted. The encroachment activities are directed to be removed forthwith. The final notification has taken sufficient safeguards to protect the interest of the people who are surviving on traditional methods of fishing.

       From Clause 17 of D-From patta, it is clear that no compensation is required to be given for the acquisition of the land, but only ex gratia amount of Rs. 300. 00 is required to be paid to the pattadar for development of the land. Further the Government clarified the position in their letter-dated 25-8-2000 addressed to the Chief Commissioner of land Administration who in turn issued instructions to the Collectors of West godavari and Krishna to evict only encroachers within the sanctuary area. The encroachment referred to in these two letters do not relate to either private lands or D-Form patta land holders and they are applicable only in respect of eviction of encroachment of Government land within sanctuary area.

       Although kolleru lake extends over 900 sq. kms. at plus 10 contour level, only 300. 8 sq. kms. have been declared as a sanctuary as a result whereof the rights of the people in and around depending on the lake have been sufficiently protected. There cannot be any dispute whatsoever that harm is being committed by digging fish tanks and cultivating foreign varieties of fish using dob, oil cake, poultry manure, farm yard manure, chemical fertilizers by reason whereof inferior, quality of fish are being produced which are not disease resistant and to prevent those diseases systematic and contact poisons are being used which are harmful in the long run to human beings when they consume those fishes. Furthermore, by reason of such notification traditional methods of fishing is not taken away. Therefore, the contention of the petitioners-associations that the members of the societies are deprived of their livelihood of surviving on traditional methods of fishing has no merit. Further catching of snails has also been prohibited, as they are natural feed of the birds.

       Having regard to the larger public interest and in view of the fact that the notification under Section 26-A had been issued pursuant to the orders of this Court, neither the notification issued under Section 18 nor the notification issued under Section 26-A can be declared as ultra vires. In any event, the rights of those fishermen who are surviving their livelihood on traditional methods of fishing have not been taken away and the rights of such fishermen have been duly protected not only by reason of the impugned notification but also in terms of the decision of the Apex Court in jagannath s case (supra ). Only those who had illegally encroached on to the area for the purposes of carrying on shrimp and prawn culture in an artificial manner using modern techniques and various harmful manures have been prevented both by reason of the aforementioned notification as also the decisions of the Apex Court. Under the provisions of the Environment Act, water Act and the Wild Life Act and the decisions of the Apex Court, the State government was under an obligation to see that the environment and the ecology of the sanctuary declared by it is safeguarded not only for the benefit of larger pubic in general but also to protect the interest of the people living in the Kolleru lake area in particular. The reports of the PCB clearly show that fish tanks dug for the purpose of prawn culture, aquaculture etc. , are polluting the lake and also the drinking water sources. If large-scale conversion of agricultural lands into fish tanks is not prohibited, it will have an impact on the future generations. It is also the fundamental duty of every citizen under article 51-A (g) of the Constitution to protect and improve the lakes of such national importance for preservation to future generations.

       When the right of the fishermen to do fishing by traditional methods had not been taken away, the contention that their right to live under Article 21 of the constitution would prevail over the maintenance of ecology does not merit consideration. The materials placed before us clearly indicate that there was obstruction to the free flow of water in the lake bed area due to raising of bunds for the purpose of prawn culture thereby the retention capacity of the lake is diminished and as a result whereof there was submergence of upstream lands in the delta system resulting in huge losses to the ryots in the upland area. If such encroachments are not removed and flood water is drained out in its natural course from the lake, the right of the farmers in the upstream mandals to do cultivation would be in jeopardy, consequently, it is their right to live guaranteed under Article 21 of the constitution of India which is violated. When the vocational activity of the fishermen to survive their livelihood by adopting traditional methods of fishing is not prohibited by the operation of the impugned notification and in view of the fact that bunding of fish tanks is hampering the delta system resulting in heavy floods and losses to farmers therein, we do not find any merit in the contention that wild life should give way to human preservation. A person in terms of Article 21 of the constitution of India cannot take recourse to or earn his or her livelihood by violating the provisions of any law.

       It may be true that Kolleru lake does not fall within the coastal regulation zone but admittedly a part of it is connected with sea and thus it cannot be said that the decision of the Apex Court in Jagannath s case (supra) shall have no application whatsoever in the facts and circumstances of the case. Even otherwise also, in view of the statutory obligations cast on the State government under the provisions of various enactments referred to above and in the light of the Judgments of the Supreme court, the notification issued under section 26-A of the Act, in our opinion, does not suffer from any infirmity.