Maruvakkad Padasekhara Karshaka Union vs Regional Deputy Director Of Fisheries,

N. Nagaresh, J

W.P.(C) No.33046/2019 has been filed by Maruvakkad Padasekhara Karshaka Union and another seeking to quash Ext.P5 and to direct the 1st respondent to grant licence to the petitioner for conducting fishing operations in the 1st petitioner-Padasekharam. In the said writ petition, the 1st petitioner is an organisation of farmers and the 2nd petitioner is a contractor who was entrusted to conduct fishing in the Padasekharam for the year 2019-2020. The Fisheries Deputy Director issued Ext.P5 stop memo stating that the 1st petitioner-Maruvakkad Padasekhara Karshaka Union is conducting prawn cultivation without licence. Therefore, the said illegal cultivation should be stopped forthwith, failing which legal proceedings will be taken against the petitioners.

The petitioners would submit that Ext.P5 has been issued under the influence of respondents 4 to 12. Ext.P5 was issued without hearing the petitioners. If licence is refused to the 1st petitioner, many farmers will not be able to carry out aquaculture operations. Therefore, the 1st respondent is compellable to grant licence to the 1st petitioner for conducting fishing operations.

The 1st respondent-Regional Deputy Director of Fisheries filed a counter affidavit. The 1st respondent stated that paddy cultivation season is from June to October. Fish cultivation is done from November to April. After harvesting fish till April, the entire Padasekharam has to be drained out before commencement of paddy cultivation. Under Rule 16(6) of the Kerala Inland Fisheries and Aquaculture Rules, 2013, the seasonal prawn cultivation period in the Pokkali fields is fixed to be from November 15th to April 14th every year. On 11.03.2019, the District Collector ordered that the Pokkali fields should be made available by the Maruvakkad Padasekhara Karshaka Union for paddy cultivation after April 15th. However, the petitioners are continuing illegal prawn filtration during the period April 15th to November 15th, without conducting Pokkali farming. The said activity is punishable and Ext.P5 stop memo is therefore justifiable.

W.P.(C) No.24586/2020 has been filed by the petitioner, who is a Pokkali farmer, seeking to implement Ext.P2 order issued by the District Collector. By Ext.P2 order, fishing activities during the time of paddy cultivation is strictly banned and the proceedings of Chal auction should be conducted as on 31st of October. It is the specific case of the petitioner that the inaction on the part of the 7th respondent-Maruvakkad Padasekhara Karshaka Union has caused damage to the entire paddy cultivation.

The 7th respondent resisted the writ petition and filed counter affidavit. The 7th  respondent stated that the pumping operations relating to dewatering, were taken over by the Irrigation Department. Dewatering was started using two motor pumps along with the sluice, namely "Petti" and "Para" by the persons employed by the Irrigation Department. Though the pumping operations continued round the clock, depth of the water was not reduced. The writ petition has been filed to create an impression that the 7th respondent-Maruvakkad Padasekhara Karshaka Union is creating difficulties for farmers which is not correct.

W.P.(C) No.929/2021 has been filed by Maruvakkad Padasekhara Karshaka Union (the 1st petitioner in WP(C) No.33046/2019) seeking to quash Ext.P4 order of the District Collector and to direct the respondents to permit the 1st petitioner to conduct auction of fishing right before August every year. The petitioner stated that when Padasekharam is given for prawn cultivation, the Contractor gets right to conduct fishing operations from 1st November to 14th April. After 14th April, the Padasekharam will be made ready for agricultural operations. The auction for fishing operations is held in July when the agricultural season is in full swing. However, the auction by itself will not affect the agricultural operations in any manner. The District Collector issued Ext.P4 ordering that auction should be conducted only after October 31st and the sluice should be open only on 15th November. Since the auctioning process of fish cultivation will not cause damage to agricultural operations in any manner, the District Collector ought not have restrained the petitioners from conducting auction.

The Government Pleader filed a statement dated 17.03.2021. The Government Pleader submitted that as per Section 12 of the Kerala Inland Fisheries and Aquaculture Act, 2010, for getting prawn filtration registration and licence, an applicant should produce necessary documents. The application of the petitioner could not be considered for licensing proceedings as the applicant failed to produce required documents along with their application.

The 4th respondent, an Agriculturist, (the petitioner in WP(C) No.24586/2020) filed a counter affidavit. The 4th respondent stated that he is in possession and enjoyment of 2.26 Acres of paddy land. The Maruvakkad Padasekhara Karshaka Union never promotes paddy cultivation. They do not make any maintenance work or work for strengthening of bunds. However, they are collecting funds from the Government. In spite of Ext.P4 order, the Maruvakkad Padasekhara Karshaka Union conducted auction for prawn/fish cultivation. The stop memo issued is therefore justified.

W.P.(C) No.1511/2021 has been filed by the petitioner in W.P.(C) No.24586/2020 along with his wife seeking to direct the 2nd respondent to take appropriate decision regarding the operation of sluice and pumping of water and construction of bunds in the Padasekharam. A direction is also sought to the 2nd respondent-District Collector to initiate appropriate action against the 10th respondent-Maruvakkad Padasekhara Karshaka Union. The petitioners would state that the Contractor has started illegal fishing during the month of August, 2020, without licence. The entire crops of the petitioners were destroyed in the years 2019 and 2020.

W.P.(C) No.2422/2021 has been filed by residence of Maruvakkad of Chellanam Panchayat aggrieved by the water clogging due to the illegal retention of saline water for aqua farming in the Maruvakkad Padasekharam. Such water clogging has become a source of spreading diseases and ecological imbalance, resulting in threat to life. The petitioners therefore seek to direct respondents 1 to 6 to conduct a detailed enquiry with regard to the water clogging and to implement the directions contained in Ext.P4 order of the Kerala State Human Rights Commission. By Ext.P4, the Kerala State Human Rights Commission ordered that expeditious action should be taken to prevent illegal fish cultivation.

The 7th respondent-Maruvakkad Padasekhara Karshaka Union resisted the writ petition. The 7th respondent stated that residential area of the petitioners is affected by flood and not by retention of saline water for aqua farming. The flood has affected aqua farming also. Fishing operation is permissible only from 1st November every year.

The  3rd  respondent  filed  a  statement.   The  3rd respondent stated that during the paddy cultivation season, dewatering of salt water is to be carried out by the Maruvakkad Padasekhara Karshaka Union. But, the Maruvakkad Padasekhara Karshaka Union most of the time fails to carry out the dewatering effectively. Consequently, there is water logging, which affects the local residents as well as the paddy cultivation.

When W.P.(C) No.24586/2020 came up for hearing, this Court passed an interim order directing the 2nd respondent-District Collector to ensure that the sluice in question is open only after 15.11.2021 and also to ensure that dewatering of salt water from the Padasekharam is done promptly. Alleging non-compliance of the said interim order dated 09.04.2021, the writ petitioner has filed Contempt Case (Civil) No.782/2021.

As is evident from the facts disclosed in the afore writ petitions, the issue arises due to non-implementation of agricultural calendar fixed by the Government. The Maruvakkad Padasekharam has more than 1550 Acres of land. It is a single crop wetland with cultivation of paddy. To prevent salt water entering into the Padasekharam, bunds are constructed on all sides, with the help of Irrigation Department. Repairs and maintenance have to be compulsorily done every year. There will be sluice and heavy motor pumps erected on the one side of the bund. During the months of April-May, the water in the Padasekharam is pumped out and sluice is closed allowing the field to dry. Agricultural cultivation starts in the month of June. Harvest takes place during the first week of October.

The activities of the Padasekharam including the fish farming is statutorily regulated by the Kerala Irrigation and Water Conservation Act, 2003. The Pokkali paddy cultivation is conducted from April 15th to October 31st and during the remaining period, fish/prawn cultivation is permitted. After the period of prawn cultivation, the entire Padasekharam is to be dewatered. By order dated 29.01.2021, the District Collector has ordered that dewatering of Pokkali fields should be started by 15th April in order to facilitate Pokkali cultivation and Aqua cultivation can be done only after 31st October.

The complaint of the Pokkali farmers is that in order to give undue benefits to the contractor undertaking prawn farming, the dewatering process is deliberately delayed, which in turn adversely affects the Pokkali cultivation. The farmers would allege that though water had to be pumped out completely in the months of March and April, the Maruvakkad Padasekhara Karshaka Union has deliberately slowed down the dewatering process.

In the communication dated 12.05.2017 sent by the Tahsildar, Kochi to the District Collector (Ext.P8 in W.P.(C) No.24586/2020), the Tahsildar has reported that the Maruvakkad Padasekhara Karshaka Union is not interested in taking steps to promote paddy cultivation. Since saline water is remaining in the fields, local residential buildings are damaged. Paddy cultivation is discouraged by contractors who undertook prawn cultivation. The Maruvakkad Padasekhara Karshaka Union is supporting the contractors. The Tahsildar suggested that prawn cultivation should be permitted only after the completion of entire agricultural operations every year. From April 15th to October 31st, saline water should not be flown into the fields. In the month of April, steps should be taken to completely dewater the fields. Bunds around the agricultural fields should be strengthened. Those farmers who do not conduct paddy cultivation should not be given benefits arising from the Padasekharam.

In another communication dated 06.07.2021 (Ext.P9 in W.P.(C) No.24586/2020), the Village Officer, Chellanam has reported that the dewatering process is not carried out satisfactorily, which consequentially affects residential buildings and vegetable cultivation. Sluice should be erected so as to prevent entry of saline water in the agricultural fields. Pumping should be done promptly in time for dewatering the fields.

It is therefore beyond doubt that the dewatering process of Maruvakkad Padasekaharam is not being carried out satisfactorily for the last few years. The failure has discouraged the Pokkali farmers, from venturing into Pokkali paddy cultivation. Saline water is permitted to remain in Pokkali fields for more than six months in an year, which has debilitating effect on residential buildings around the Pokkali fields. It has adversely affected the vegetable cultivation in the area also.

In COC No.782/2021, this Court appointed a Court Commissioner. The Court Commissioner stated that in spite of the ongoing dewatering process, large area of Padasekharam is still water logged. The two existing sluices are not fully effective and require repairing and modification. According to the Court Commissioner, if the present dewatering method is followed, more time will be consumed for finishing the dewatering process.

The Commissioner also reported that there were two pump houses, one of which is damaged without any pump inside. In the other pump house, two 50 HP conventional type pumps were working for dewatering. The usage of these pumps are also not fully effective. During high tide, the dewatering is not supported by these type of conventional pumps (Petti and Para). According to the Commissioner, timely operation of motor pumps is required for dewatering of the total area and at least two more motor pumps are to be installed. According to the Court Commissioner, "the Squirrel Cage Vertical Pumping Mechanism" would be advisable for effective dewatering. The Court Commissioner made the following suggestions:-

"(a) Timely effective motor pump operation

If timely effective pump operation is carried out by the responsible parties/Padasekhara Samithi by fully utilizing the existing two pumps installed at the eastern boundary Bund of Maruvakkad Padasekharam, dewatering of the total area is possible to an extend. For the above purpose, continuous dewatering should start at least by 3rd week of March in order to get a water free field ready for ploughing by 15th April.

(b) Requirement for two more motor pumps

Two more motor pumps are urgently required for the spot to cater the timely dewatering/pumping.

The Agriculture Officer has informed that, a project report/ proposal had already been submitted before the Government and sanction order for additional motors yet to come for installation. Agriculture Officer and some of the farmers gathered suggested that, the Squirrel Cage vertical Pumping Mechanism is a successful method to expedite the dewatering pumping system. It was informed that, the nearby Kandakkadavu Padasekhara Samithi had already been installed such type and successfully operating.

(c) Formation of an Adhoc Committee/Farm Committee

A suggestion for constituting an Adhoc Committee is hereby proposed for the kind consideration of this Hon'ble Court, consisting the representatives of Agriculture, Irrigation, Revenue Departments and the representatives of Padasekhara samithi as well as Pokkali paddy farmers also with any suitable official to preside the Committee as this Hon'ble Court may deem fit. Such a Committee shall monitor and submit periodical report on the activities of the Padasekharam before this Hon'ble Court at least for two years consecutively may help to bring the situation into normalcy. Thus both the Pokkali paddy cultivation and saline aqua culture can be regulated and controlled without any disputes in accordance with the periodical crop calendar issued by PLDA. The AE of Irrigation Department reported that, several internal bunds in the padsekharam are in an eroded state which requires strengthening and also suggested that, during Pokkali paddy cultivation the pump operation may be entrusted to an independent Samithi in order to strictly regulate pumping and water level.

(d) Strict supervision and reporting

I propose a strict supervision and reporting of dewatering/ pumping operations by a competent authority. For the said purpose, I suggest for the possibility for getting the periodical report along with the Photos/Images and sketches from KSREC (Kerala State Remote Sensing & Environment Centre). Such Authentic Reports availed periodically may obviously help the Committee to make decisions and initiate actions. Such Report will reflect the upto date images of agricultural/climatic/water level status and also the Sluice operations and related activities in the Padasekharam. Apart from above, possibility of Camera Surveillance is also recommended. The Kerala Forest Department and Dam Safety Authority as well as KSEB also utilising such methods for their long term monitoring purposes. The services of night watchmen also recommended for surveillance.

(e) To assure uninterrupted power supply

The Committee/ competent authority shall periodically monitor and check up with the KSEB as regarding power supply and also the technical/ mechanical aspects of the pumps operating for dewatering.

(f) The Committee/ The competent authority shall supervise the issuance of fish farming/ Aqua culture contracts

The contracts for fish farming shall be issued only to the licensed contractors or farmers in accordance with Law. The lease for the saline aqua culture shall not be issued before the end of paddy crop season. The Chemical usage shall also be prohibited for fishing all over the Padasekharam through out the year. The Committee shall monitor and regulate the cultivation as per the crop calendar for a particular period as above mentioned. The Committee may also be empowered to initiate any legal action, if required with Police assistance in order to meet any law and Order situation or to prevent any activity affecting the systematic activity of paddy cultivation and saline aqua culture for the respective seasons in accordance with the crop calendar. Apart from above the following particulars are also hereby produced before this Hon'ble Court."

Taking into account the various reports filed by the Revenue and Irrigation officials and also the report submitted by the Court Commissioner, this Court is of the view that the present mechanism for dewatering the Pokkali Fields involving the Maruvakkad Padasekhara Karshaka Union has not worked out well. Therefore, it is extremely necessary to make effective arrangements for dewatering in the Padasekharam.

Accordingly, in W.P.(C) Nos.24586/2020, 1511/2021 and 2422/2021, it is ordered that a Compact Committee should supervise the dewatering process from 1st March every year till the dewatering process is satisfactorily completed. For the said purpose, this Court constitutes the following Committee:

(i) The Advocate Commissioner appointed by this Court as per order dated 09.08.2021 (who will act as Chairman of the Committee)

(ii) Agricultural Officer

(iii) Superintending Engineer, Minor Irrigation Central Circle, Ernakulam

(iv) Fisheries Extension Officer, Chellanam

(v) Circle Inspector of Police, Kumbalangi

(vi) President of Maruvakkad Padasekhara Karshaka Union.

The aforesaid Committee shall convene meeting sufficiently in advance to carry out the dewatering of padasekharam. The tenure of the Committee will be for a period of two years.

From the reports, it is clear that at least four water pumps are required for effective dewatering process. At present, there are only two motor pumps and two pump houses, one of which is damaged. In the circumstances, the Chief Engineer, Department of Irrigation is directed to take steps for construction of two more pump houses and for purchase and installation of two more motor pumps for effectively dewatering the Padasekharam in the future years. The respondents, Agricultural Officer and Superintending Engineer, Minor Irrigation Central Circle, Ernakulam, are also directed to repair one of the existing damaged pumps/pump houses.

The respondents, Agricultural Officer and Superintending Engineer, Minor Irrigation Central Circle, Ernakulam, are required to take necessary steps to strengthen the bunds around the Padasekharam sufficiently in advance, every year. The Committee shall also explore the possibility and viability of planting Coconut trees for strengthening the bunds on a permanent basis.

The respondents, Agricultural Officer and Superintending Engineer, Minor Irrigation Central Circle, Ernakulam, are further directed to take effective measures to install leak-proof sluices, wherever necessary, for which the feasibility of installing wooden shutters should also be looked into.

The Committee shall file biweekly reports in W.P. (C) No.24586/2020 on and from 1st March of the ensuing year, till dewatering process is completed and concluded.

As far as COC No.782/2021 is concerned, this Court is of the considered opinion that the respondent in the Contempt Case has taken all possible steps for dewatering of salt water from the Padasekharam. Large number of officials were deputed to the site for supervising the dewatering process. However, the non-avaiability of sufficient number of motor pumps has been a problem for effective dewatering. It is also reported that even a Fire Engine was deployed for carrying out dewatering. However, the frequent rain falls occurred during the period have made completion of dewatering very difficult. In such circumstances, this Court do not find any reason to proceed with COC No.782/2021.

In W.P.(C) No.33046/2019, the petitioners challenged Ext.P5 order of the Fisheries Deputy Director directing the 1st petitioner to stop Aquaculture activities being carried on without registration/licence and to grant licence to the petitioners for conducting fishing operations. By passage of time, the Stop Memo issued has become redundant. The writ petitioners are at liberty to apply for fresh licence for conducting fishing operations in the ensuing years, in accordance with law.

In W.P.(C) No.929/2021, the petitioner seeks to set aside Ext.P4 order whereby the District Collector has directed that auction of Chal for prawn cultivation can be started only after 31st October and sluice can be opened only after 15th November. The Deputy Director of Fisheries stated that the applications for registration and licence submitted by the petitioner was not supported by requisite documents. In the circumstances, this Court finds no reason to interfere with Ext.P4. The petitioner will be at liberty to apply for registration and licence for the ensuing years, in accordance with law.

The writ petitions and Contempt Case are therefore disposed of as above.